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Specific Relief Act, 1877

PART I PRELIMINARY

Preamble

1. Short title, Local extent, & Commencement

2. [Repeal of enactment.] Rep.

3. Interpretation clause

4. Savings

5. Specific relief how given

6. Preventive relief

7. Relief not granted to enforce penal law

 

PART II OF SPECIFIC RELIEF

CHAPTER I Of Recovering Possession of Property

8. Recovery of specific immovable property

9. Suit by person dispossessed of immovable property

10. Recovery of Specific movable property

11. Liability of person in possession, not as owner, to deliver to person entitled to immediate possession

 

CHAPTER II Of the Specific performance of Contracts

12. Cases in which specific performances enforceable

13. Contract of which the subject has partially ceased to exist

14. Specific performance of part of contract where part unperformed is small

15. Specific performance of part of contract where part unperformed is large

16. Specific performance of independent part of contract

17. Bar in other cases of specific performance of part of contract

18. Purchaser’s right against vendor with imperfect title

19. Power to award compensation in certain cases

20. Liquidation of damages not a bar to specific performance

21. Contracts not specifically enforceable

22. Discretion as to decreeing specific performance

23. Who may obtain specific performance

24. Personal bars to the relief

25. Contracts to sell property by one who has no title or who is a voluntary settler

26. Non-enforcement except with variation

27. Relief against parties and persons claiming under them by subsequent title

27-A. Specific performance in case of part performance of contract to lease

28. What parties cannot be compelled to perform

29. Bar of suit for breach after dismissal

30. Application of preceding sections to awards and testamentary directions to execute settlements

 

CHAPTER III Of The Rectification of Instruments

31. When instrument may be rectified

32. Presumption as to intent of parties

33. Principles of rectification

34. Specific enforcement of rectified contract

 

CHAPTER IV Of The Rescission of Contracts

35. When rescission may be adjudged

36. Rescission for mistake

37. Alternative prayer for rescission in suit for specific performance

38. Court may require party rescinding to do equity

 

CHAPTER V Of the Cancellation of Instruments

39. When cancellation may be ordered

40. What instrument may be partially cancelled

41. Power to require party for whom instrument is cancelled to make compensation

 

CHAPTER VI Of Declaratory Decrees

42. Discretion of Court as to declaration of status or right

43. Effect of declaration

 

CHAPTER VII Of the Appointment of Receivers

44. Appointment of receivers discretionary

 

CHAPTER VIII Of The Enforcement of Public Duties

Ss 45 — 51 Omitted

 

PART III Of Preventive Relief

CHAPTER IX Of Injunctions Generally

52. Preventive relief how granted

53. Temporary injunctions

CHAPTER X Of Perpetual injunctions

54. Perpetual injunction when granted

55. Mandatory injunction

56. Injunction when refused

57. Injunction to perform negative agreement

 

SCHEDULE

Enactments Repealed

 

Preamble

Specific Relief Act, 1877 

I of 1877


An Act to define and amend the law relating to certain kinds of Specific Relief.

 

Preamble.

Whereas it is expedient to define and amend the law relating to certain kinds of specific relief obtainable in civil suits’ 

It is hereby enacted as follows: —

 

 

1. Short title, Local extent, & Commencement

This Act may be called the Specific Relief Act, 1877.

[It extends to the whole of Pakistan].

And it shall come into force on the first day of May, 1877.

 

2. [Repeal of enactment.] Rep.

 

 Rep. By the Amending Act, 1891 (XII of 1891).

 

3. Interpretation clause

 

In this Act, unless there be something repugnant in the subject or context. –
obligation’ includes every duty enforceable by law:
‘trust’ includes every species of express, implied, or constructive fiduciary ownership;
‘trustee’ includes every person holding, expressly, by implication, or constructively, a fiduciary character;

Illustrations
(a) Z. bequeaths land to A, ‘not doubting that he will pay thereout an annuity of Rs. 1,000 to B for his life’. A accepts the bequest. A is a trustee, within the meaning of this Act, for B to the extent of the annuity.

(b) A is the legal, medical or spiritual adviser of B. By availing himself of this situation as such adviser, A gains some pecuniary advantage which might otherwise have accrued to B. A is a trustee for B, within the meaning of this Act, of such advantage.


(c) A, being B’s banker, discloses for his own purpose, the state of B’s account. A is trustee, within the meaning of this Act for B, of the benefit gained by him by means of such disclosure.


(d) A, the mortgagee of certain lease-holds, renews-the lease in his own name. A is a trustee, within the meaning of this Act, of the renewed lease, for those interested in the original lease.


(e) A, one of several partners, is employed to purchase goods for the firm. A, unknown to his co-partners, supplies them, at the market price, with goods previously bought by himself when the price was lower and thus makes a considerable profit. A is a trustee for his co-partners within the meaning of this Act, of the profit so made.

(f) A, the manager of B’s indigo factory becomes agent for C, a vendor of indigo-seed, and receives, without B’s assent, commission on the seed purchased from C for the factory. A is a trustee, within the meaning of this Act, for B, of the commission so received.


(g) A buys certain land with notice that B has already contracted to buy it. A is a trustee, within the meaning of this Act, for B of the land so bought.


(h) A buys land from B having notice that C is in occupation of the land. A omits to make any inquiry as to the nature of C’s interest therein. A is a trustee, within the meaning of this Act for C, to the extent of that interest.
‘settlement’ means any instrument other than a will or codicil as defined by the Succession Act whereby the destination or devolution of successive interest in movable or immovable property is disposed of or is agreed to be disposed of.


Words defined in Contract Act. And all words occurring in this Act, which are defined in the Contract Act, 1872, shall be deemed to have the meanings respectively assigned to them by the Act.

 

Court Decisions

Consent– “consent” or free-consent in Contract Act, 1872 applies to provisions of Specific Relief Act under residuary clause of S. 3 of Specific Relief Act. 1982 SCMR 741.

 

4. Savings

 

Except where it is herein otherwise expressly enacted, nothing in this Act shall be deemed-

(a) to give any right to relief in respect of any agreement which is not a contract;

(b) to deprive any person of any right to relief, other than specific performance, which he may have under any contract; or

(c) to affect the operation of the Indian Registration Act, on documents.

 

Court Decisions

Sindh People’s Local Government Ordinance: Factum of such contract was denied by defendant (KMC) Effect, neither any formal contract as provided under s. 42 Sindh People’s Local Government Ordinance, 1972 (since repealed) was executed nor the same was.placed before Local Council/Corporation which was mandatory. There was no concluded and binding contract between plaintiffs and defendants for lease or sale of property in question.  P.L.J.1999 Kar. 114 = 1999 CLC 1547.

 

5. Specific relief how given

 

Specific relief is given-

(a)    by taking possession of certain property and delivering it to a claimant;

(b)   by ordering a party to do the very act which he is under an obligation to do;

(c)    by preventing a party from doing that which he is under an obligation not to do;

(d)   by determining and declaring the rights of parties otherwise than by an award of compensation; or

(e)    by appointing a receiver.

 

 

6. Preventive relief

 

Specific relief granted under clause (C) of section 5 is called preventive relief.

 

7. Relief not granted to enforce penal law

 

Specific relief cannot be granted for the mere purpose of enforcing a penal law.

 

8. Recovery of specific immovable property

 

            A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure.

 

Court Decisions

Co-Sharer dispossess by other co-Sharer. Remedy to regain possession. After dispossession of a co-Sharer by other co-Sharer he has two remedies for seeking redress, namely, a suit under section 9 of Specific Relief Act and proceedings for partition of Joint property. A third remedy that is an ordinary suit for restoration of exclusive possession wold amount to placing one set of co-Sharers in a much more advantageous position as compared to other for which there is no warrant in law or equity. Where evidence on record does not show that title of appellants in respect of disputed land was superior to that of respondents. Mere fact that appellants remained in exclusive possession of disputed land for a long time would not make any difference, as admitted position in case is that both parties were Joint owners in Abadi Deh and Shamlat Deh which included disputed portion of land.  P.L.J.2000 SC 1071.

 

Objection against findings of Trial Court-Non-filing of objections in appeal – Plea of adverse possession was raised by the defendants and Trial Court dismissed the suit being time-barred – Lower Appellate Court found the plaintiff in constructive possession and allowed (he appeal as the suit was within limitation-Defendants did not file any cross-objection before the Lower Appellate Court as provided under O.XLI, R.22, C.P.C, – Validity – Where defendants raised no other plea to occupy the disputed property except that which had already been decided against them by Trial Court, the defendants had no legal entitlement to remain in possession of the property – High Court declined to interfere with the Judgment passed by the Lower Appellate Court in circumstances. PLD 2001 Lah.390  PLD 1996 Central Statutes 1296; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Shah Sultan v. Abdul Khaliq 1987 SCMR 1791 and Afzal Khan and 2 others v. Abdul Faheem and 4 others PLD 1994 Quetta 26 ref.

 

Private partition of land. Private partition of land would not invest a co-sharer with possession with exclusive title of land until and unless a regular partition took place between co-owners through Rev. Authorities. Interest of other co-Sharer, who was not in possession of particular survey number, would not extinguish and he would remain a co-Sharer until a co-Sharer in exclusive possession of a specific part of Joint land proved his adverse possession over same.  P.L.J.2000 SC(AJ & K) 390.

 

Recovery of possession by co-sharer – Accrual of cause of action – Plaintiffs assailed mutation on the basis that the transferor was owner of limited estate and under S. 3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, she could not transfer the property in excess of her legal share – judgment and decree passed by Trial Court in favour of the plaintiffs was set aside by Appellate Court on the ground that the suit was barred by time – Plaintiffs contended that as they were co-sharers, therefore, they had a continuous cause of action – Validity – Entry in the record of rights if was adverse of the interest of the plaintiffs and if on every such entry at every four years there was denial of the right of plaintiffs, the plaintiffs had the option to file a suit on every denial and every denial would furnish a fresh cause of action – Such aspect of the case had not been adverted to by the Appellate Court who passed the judgment – judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored. PLD 2003 Lah. 186

 

 Suit for declaration and possession – Plaintiffs claiming to be owners of suit land having been purchased by their predecessor-in-interest, prayed for its possession and for declaration of their title and in alternative having same matured by prescription – Suit was decreed by Trial Court, but was dismissed by Appellate Court – High Court in revision set aside judgment of Appellate Court and restored that of Trial Court – Validity – Important piece of evidence in support of plaintiffs claim was copy of unregistered and unstamped agreement to sell – Photo copy of agreement had been exhibited in evidence without directing production of original document and without leave of court to lead secondary evidence after proof of loss or destruction of original agreement, thus, were guilty of withholding best available primary evidence – Since contents of such document purported to transfer absolute ownership of land, same required compulsory registration irrespective of fact, whether such document was agreement of sale or sale-deed – Such document being inadmissible in evidence, no presumption as to its correctness or validity could arise – Such document lacking necessary particulars in respect of identity of land and being unregistered would not transfer any valid title in favour of plaintiffs – High Court, without adverting to such aspect of the case, had proceeded to accept document as a valid deed of transfer being thirty years old – Such document was executed on 6-10-1947 – Mutation was recorded on 9-2-1957, but was cancelled on 25-2-1957 – Suit was filed on 3-12-1984 – Such inordinate delay on plaintiff’s part in bringing suit created doubts about bona fides of their acts and genuineness of their cause – Plaintiffs were not sure as to which of Khasra numbers was purchased by their predecessor – Construction of shops and production of rent notes executed by tenants was not sufficient to identify land – Entries in record of rights were showing predecessor of defendants as owners, whereas predecessor of plaintiffs as tenant-at-will – If possession of plaintiffs was permissive in nature, then same could not be in their own rights nor adverse to right/interest of real owners – Plaintiffs or their own rights nor adverse to right/interest of real owners – Plaintiffs or their predecessor had not remained in possession of land in their own right in pursuance of alleged agreement – No assertion of open and hostile title adverse to interest of defendants was made – Findings of High Court affirming that of Trial court were suffering from serious misconstruction of evidence and misconception of law as evidence on record had not been appreciated in its true perspective – Supreme Court accepted appeal, set aside judgments/decrees passed by Trial Court and High Court and restored judgment/decree passed by Appellate Court. PLD 2003 SC 410

 

Suit for possession, mesne profits and damages. Whether a suit’for possession is maintainable without praying for declaration of title. Change of ownership rights and mutation in the name of plaintiff by KDA in their records followed by execution of a valid and lawful indenture of lease in his favour establish that it can be very conveniently and safely held that plaintiff is entitled to sue for recovery of possession without seeking declaration of title.  P.L.J.1997 Kar. 76 = 1997 CLC 176=NLR 1997Civil 130.

 

 Suit for possession, declaration and mesne profits ‑‑‑Revisional jurisdiction, exercise of‑‑‑Suit was resisted by defendant on grounds that identity of suit property was in dispute and that defendant had claimed title in respect of suit property by virtue of inheritance and on basis .of will‑‑­Validity‑‑‑Full description of suit. property had been given and identity of property had not been disputed by defendant either before Trial Court or before Appellate Court‑‑‑Such controversy could not be urged at revisional stage‑‑‑Defendant could not produce any document to prove his title in suit property by virtue of inheritance or on basis; of alleged Will‑‑‑Plaintiff on the contrary had succeeded in establishing her title in property resting on registered instrument‑‑‑Presumption as to genuineness, .correctness and authenticity of registered documents under Arts.85(5) & 129of Qanun‑e‑Shahadat, 1984 was not dispelled by defendant and oral assertion was not sufficient to rebut registered documents produced by plaintiff in proof of her title in respect of suit property‑‑‑Suit for possession and declaration was rightly decreed by Trial Court and Appellate Court‑‑‑Concurrent findings of Courts below could not be interfered with in revisional jurisdiction of High Court when no illegality was pointed out in concurrent finding of Courts below. 2002 M L D 1397  Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD 281 and Syed Akhtar Hussain Zaidi’s case 1988 SCMR 753 ref.

 

Suit for possession – plaintiff having based his claim on suit property on ownership having title, suit could proceed under S. 8 of Specific Relief Act, 1877. PLD 2003 Lah. 204

 

Suit for possession of immovable property – Where the case was neither of trespassing nor of adverse possession, rather it was a case of permissive possession, provisions of Art. 142 of Limitation Act, 1908, would be attracted- PLD 2001 Lah.390

 

Suit for specific performance of agreement to sell – Vendor entered into agreement to sell with plaintiff on payment of Rs. 26,000, but later on sold the land to subsequent vendees for Rs. 1,00,000 – Trial Court dismissed plaintiff’s suit – High court in revision enhanced decretal amount of Rs. 26,000 to Rs. 1,30,000 – Vendor had not challenged such increase of decretal amount – thus, he was bound to pay the same – present value of property according to parties was more than Rs. 2,00,000 – if property had so much escalated in value, then amount paid by plaintiff had equally escalated in similar proportion – Value of currency had gone down due to high inflationary trends in economy – Plaintiff and his legal heirs needed to be compensated for torture of protracted litigation for last 22/23 years – Had amount paid by plaintiff been invested, same would have enhanced in value at least ten times – Plaintiff was entitled by all means to such compensation – Supreme Court converted petition into appeal and after partially accepting same granted decree to plaintiff for recovery of Rs. 2,30,000, out of which decree against vendor would be of Rs. 1,30,000 and against subsequent vendees would be of Rs. 1,00,000. PLD 2003 SC 494

 

Symbolic possession:–  Decree granted in favour of vendee in his suit for possession was for symbolic possession—Even if vendors were in possession of property in question as a co-sharers, they could not object to decree granted to vendees–­Contention that vendors’ possession being that of co-sharers, a suit for partition or a suit under S.9, could only have been filed, was repelled being misconceived.  1994MLD461  Fazil etc. v. Manzoor Hussain etc. PLD 1979 Note 9 at p. 6 ref.

 

9. Suit by person dispossessed of immovable property

 

             If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover

 

(a) possession thereof, notwithstanding any other title than may be set up in such suit.

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

No suit under this section shall be brought against the Federal Government or any Provincial Government.

No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

 

(b) Possession of Movable Property


Court Decisions

Gift-deed and delivery of possession. When points relating to an issue are deposed in evidence and opposite party does not cross-examine that witness on those points, such portions of statement of witness shall be deemed to have been admitted by opposite side. After execution of gift-deed plaintiff/respondent was handed over possession of suit land and subsequently illegal construction was raised by defendant-appellant a week prior to institution of suit, hence, suit being within a period of six months from date of dispossession could not be said to be beyond period of limitation. Appellant did not utter even a single word with regard to entries of new settlement record in favour of respondent as being false and fictitious.  P.L.J.1999 SC (AJK) 129 = 1999 PLC 4511.

 

Limitation–­ Appellant/plaintiff was owner in possession of the suit land within 12 years of the institution of the suit-Period of limitation for recovery of such possession under Art. 142, Limitation Act, 1908 was 12 years from the date of dispossession or discontinuance-Both the Courts below had wrongly concluded from the evidence on record that the suit was time­ barred-Suit was within time and was properly valued-Judgments and decrees of both the Courts below were set aside. 1999 Y L R 1981

 

Previous possession and wrongful dispossession proved by plaintiffs – Plaintiffs were not required to establish their title to land in question – Defendant was unable to established source of its title as asserted – Findings arrived at by trial court on question of possession of plaintiffs and dispossession on the part of defendant did not call for any interference – Appraisal of evidence by both courts below was neither arbitrary nor suffered from misreading of evidence or misconstruction of any material available on record – Judgments of Courts below were maintained in circumstances. P L J 2004 SC 137

 

Punjab Tenancy Act, 1887. Petitioner who had been dispossessed through the agency of the police at direction of Deputy Commissioner, could not resort to the filing of civil suit under S. 9 of Specific Relief Act, or under S, 50 of the Punjab Tenancy Act, 1887 as his personal and individual right stood infringed and he had rightly resorted to the filing of Constitutional petition. Provisions of Art. 199 of Constitution of 1973 confer very wide powers on High Court for enforcement of Fundamental and legal rights.  P.L.J.1999 Lah. 140 = 1998 MLD 1977 = NLR 1998 Civil 714.

 

Restoration of possession. Contention that petitioner had purchased property in dispute and Respondents obtained decree for possession without impleading him as a party to suit. Any decision/decree rendered or passed by court under Section 9 of Specific Relief Act, is tentative in nature and-is designed to restore possession of an ousted party quickly and without determining title of parties. Such decision is neither subject to incident of appeal nor review. Order passed in execution proceedings being continuation of the suit are not subject to any appeal or review.  P.L.J.1995 Lah. 495 = 1995 CLC 777. In order to become entitled to relief under Section 9, plaintiff must prove that he was in possession of property; he has been dispossessed by defendant otherwise than in due course of law and dispossession took place within 6 months of suit. No question of title either of plaintiff or defendant can be raised or gone into in such cases. Such a relief can be granted even against true owner of property himself.  P.L.J.2000 SC 1894.  When plaintiff is dispossessed during pendency of suit, it is always open to court to grant him relief of possession in suit or declaration. Otherwise also relief for possession can always be granted in suit under section 42 of Specific Relief Act by allowing amendment in plaint. Decree for possession has been rightly granted by learned appellate court.  P.L.J.1996 Lah. 372 = PLD 1995 Lah. 617. Appellant/plaintiff was owner in possession of the suit land within 12 years of the institution of the suit-Period of limitation for recovery of such possession under Art. 142, Limitation Act, 1908 was 12 years from the date of dispossession or discontinuance-Both the Courts below had wrongly concluded from the evidence on record that the suit was time­ barred-Suit was within time and was properly valued-Judgments and decrees of both the Courts below were set aside. 1999 Y L R 1981

 

Sharer dispossess by other co-Sharer. Remedy to regain possession. After dispossession of a co-Sharer by other co-Sharer he has two remedies for seeking redress, namely, a suit under section 9 of Specific Relief Act and proceedings for partition of Joint property. A third remedy that is an ordinary suit for restoration of exclusive possession wold amount to placing one set of co-Sharers in a much more advantageous position as compared to other for which there is no warrant in law or equity. Where evidence on record does not show that title of appellants in respect of disputed land was superior to that of respondents. Mere fact that appellants remained in exclusive possession of disputed land for a long time would not make any difference, as admitted position in case is that both parties were Joint owners in Abadi Deh and Shamlat Deh which included disputed portion of land.  P.L.J.2000 SC 1071.

 

Suit by tenant dispossessed from shop by force – – Prima facie evidence showing possession of shop by tenant was in the form of electricity and telephone bills— Such position would not be affected ,if shop was lying locked over a certain period – Tenant was regularly depositing rent in Court and thus was entitled to appropriate relief – In view of conduct of parties, appropriate measures were required to safeguard their interest and prevent property from being wasted or creation of third party interest – High court accepted application and appointed official Assignee as receiver to take all necessary steps to secure and seal shop. Defendant (purchaser) Later on got himself impleaded as party and produced sale-deed in his favour and possession note showing handing over possession of shop by tenant – Tenant denied execution of any document or handing over possession of ship to any of the defendants, and further prayed for cancellation of documents being fraudulent – Contention ot defendants was that on account of additional reliefs clamied through amended plaint, the suit had seized to be one under S. 9 of Specific Relief Act, 1877 – Validity – Cause of grievance in such suit was execution of alleged document of handing over vacant possession of shop by tenant to landlord – Tenant had challenged such document as a fraudulent one – Such document pertained to valuable rights of possession of tenant – Suit challenging such document on ground of fraud instituted by tenant was maintainable. PLD 2003 Kar. 436

 

Suit by tenant for possession of property under S. 9 of Specific Relief Act, 1877 – Sale of property by defendant-owner – Plaintiff would not be entitled to object to such sale – Suit challenging validity of such sale and transfer of property would not be maintainable.  PLD 2003 Kar. 436

 

Suit for possession. Pre-requisites. In suit for possession of property in terms of S. 9 of the Specific Relief Act plaintiff must prove that he had been dispossessed;

 

such dispossession was from immovable property; dispossession was without his consent; and dispossession was otherwise than in due course of law. Possession of plaintiff in respect of disputed property had been fully established by evidence on record. Possesison of property in question, having been forcibly taken during absence of plaintiff, he had made out case for, restoration of possession.  P.L.J.1998 Kar. 69 = 1998 MLD 90.

 

Suit of possession – Essentials – Nature and effect of proceedings under S. 9, Specific Relief Act 1877 – Essential ingredients to be established at the trial in suit for possession are; that plaintiff was in possession of land in question; that he was dispossessed by defendant; that he was dispossessed against his consent and not in accordance with law, and; that such dispossession took place within period of six months of suit – Object of S. 9, Specific Relief Act, 1877 is to discourage forcible dispossession and to provide quicker remedy for recovery of possession where a person was dispossessed from immovable property otherwise where a person was dispossessed from immovable Property otherwise than in due course of law – Plaintiff was not required to prove his title but merely his previous possession and wrongful dispossession. P L J 2004 SC 137

Whether appeal was maintainable. It is clear from concluding part of Section 9 of Act that there is no statutory provision for appeal from an order or decree passed under this section. Even review of such order or decree is not allowed. Even proof of title is not necessary. Plaintiff can succeed merely by establishing that he was unlawfully dispossessed by his rival party. Party feeling aggrieved by order or decree under Section 9 can bring a regular suit for establishing its title and eventually recovering possession. Right of appeal could not have been pressed into service by respondents and appellate order is without Jurisdiction and void ah initio.  P.L.J.1995 Pesh. 114 = 1995 CLC 1600.

 

    10. Recovery of Specific movable property

 

A person entitled to the possession of specific movable property may recover the same in the manner prescribed by the Code of Civil Procedure.

Explanation I. A trustee may sue under this section for the possession of property to the beneficial interest in which the person for whom he is trustee is entitled.

Explanation 2. A special or temporary right to the present possession of property is sufficient to support a suit under this section.

 

Illustrations

(a) A bequeaths land to B for his life, with remainder to C. A dies. B enters on the land, but C, without B’s consent, obtains possession of the title-deeds. B may recover them from C.

(b) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled to do so. A without having paid or tendered the amount of the loan, sues B for possession of the jewels. The suit should be dismissed, as A is not entitled to their possession, whatever right he may have to secure their safe custody.

(c) A receives a letter addressed to him by B. B gets back the letter without A’s consent. A has such a property therein as entitles him to recover it from B.

(d) A deposits books and papers for safe custody with B. B loses them and C finds them but refuses to deliver them to B when demanded. B may recover them from C, subject to C’s right, if any, under Section 168 of the Contract Act. 1872 (IX of 1872).

(e) A, & warehouse-keeper, is charged with the delivery of certain goods to 7., which B takes out of A’s possession. A may sue for the goods.

 

11. Liability of person in possession, not as owner, to deliver to person entitled to immediate possession

 

Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:-

(a) When the thing claimed is held by the defendant as the agent or trustee of the claimant;

(b) When compensation in money would not afford the claimant adequate relief for the loss of the thing claimed;

(c) When it would be extremely difficult to ascertain the actual damage caused by its loss;

(d) When the possession of the thing claimed has been wrongfully transferred from the claimant.

 

Illustrations Of clause (a)-

A proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. B without A’s authority, pledges the furniture to C, and C knowing that B has no right to pledge the furniture, advertises it for sale, C may he compelled to deliver the furniture, to A, for he holds it as A’s trustee.

 

Illustrations Of clause (b)-

Z has got possession of an idol belonging to A’s family and of which A is the proper custodian. Z may be compelled to deliver the idol to A.

Illustrations Of clause (c)-

A is entitled to a picture by a dead painter and a pair of a rare China vases. B has possession of them. The articles are of too special a character to bear an ascertainable market value. B may be compelled to deliver them to A.

 

12. Cases in which specific performances enforceable

 

Except as otherwise provided in this chapter, the specific performance of any contract may in the discretion of the Court be enforced-

(a) when the act agreed to be done is in the performance, wholly or partly, of a trust;

(b) when their exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done;

(c) when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or

(d) when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.

 

Explanation. Unless and unless 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.

 

Illustrations Of clause (a)- .-

Omitted by the Federal Laws (Revision & Declaration) Ordinance, XXVII of 1981.

 

Of clause (b)-

A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare China vases. A may compel B specifically to perform his contract for there is no standard for ascertaining the actual damage which would be caused by its non-performance.

 

Of clause (c).

A contracts with B to sell him a house for Rs. 1,000. B is entitled to a decree directing A to convey the house to him he paying the purchase-money.

 

In consideration of being released from certain obligations imposed on it by its Act of Incorporation, a Railway Company contracts with Z to make an arch way through their railway to connect lands of Z served by the railway to construct a road between certain specified points, to pay a certain annual sum towards the maintenance of this road and also to construct a siding and a wharf as specified in the contract. Z is entitled to have this contract specifically enforced for his interest in its performance cannot be adequately compensated for by money ; and the Court may appoint a proper person to superintend the construction of the archway, road, siding and wharf.

 

A contracts to sell and B contracts to buy, a certain number of Railway shares of a particular description. A refuses to complete the sale. B may compel A specifically to perform this agreement, for the shares are limited in number and not always to be had in the market, and their possession carries with it the status’ of a share holder, which cannot otherwise be procured.
A contracts with B to paint a picture for B who agrees to pay therefor Rs. 1,000. The picture is painted, B is entitled to have it delivered to him on payment or tender of Rs. 1,000.

 

Of clause (d)-

A transfer without endorsement, but for valuable consideration, a promissory note to B. A becomes insolvent, and C is appointed his assignee. B may compel C to endorse the note, for C has succeeded to A’s liabilities and a decree for pecuniary compensation for not endorsing the note would be fruitless.

 

Court Decisions

Specific performance:– Suit for specific performance alone would be competent in presence of agreement to sell. Declaratory suit U/S. 42 in such case would be barred.  P.L.J.2000 SC 331.

Plaintiffs being tenants against whom order of ejectment had been passed, had filed suit to the effect that after order of ejectment was passed against .them, there was agreement of sale between parties and that plaintiffs had passed on earnest money to defendants as per terms of agreement of sale. Defendant had totally denied such agreement. Share of defendants being admittedly undivided, even if it was proved that they had agreed to .sell property, such agreement would be deemed to be void. Plaintiffs having failed to make out prima facie case for grant of temporary injunction. Plaintiffs, however, being tenants they would not be dispossessed/ejected otherwise than in due course, of law. Relief claimed could not be granted for no injunction could be granted to stay Judicial proceedings in terms of S. 56, Specific Relief Act, 1877.  P.L.J.1999 Kar. 213 = 1998 CLC 1515.

 

Court while passing decree in such suit fixed time for deposit of sale price and provided consequences of dismissal of suit in case of failure to comply with the decree – Extension of such time – Powers of Court – Scope – Such decree was not preliminary, but to all intents and purposes was final in nature – court had no jurisdiction to extend the time under S. 148, C.P.C., on principle of becoming functus officio – Such rule was not absolute, but subject to certain exceptions including situations beyond control of the decree-holder to comply with decree or the act of court which impeded compliance thereof – When judgment and decree was corrected, then time provided in original decree for such deposit would start from the time, when the correction was allowed – Principles and exceptions illustrated. PLD 2004 Lah. 103  Application for amendment of the plaint – Limitation, computation of – proposed amendment in the plaint – Limitation, computation of – proposed amendment in the plaint was allowed by the Trial Court on payment of costs and defendant received the costs and did not challenge the said order – Cumulative effect of the acceptance of the application for amendment of the plaint and the acquiescence of the defendant was that no right had accrued to the defendant by efflux of time – Plaintiff, in the present case, was in possession of the suit-land and in addition of the alternate relief by way of amendment in the plaint had not substituted the cause of action, therefore, the amendment would relate back to the date of institution of the suit and as such he alternate relief was not barred by limitation. PLD 2004 SC 62  Parties by mentioning one month time in agreement had not intended to make the time of the essence of contract – Conduct of parties showed that plaintiff being a property dealer by profession had been anxious for completion of contract with a view to frustrate contract, whereas plaintiff had issued timely notice to her for discharge of her obligation by executing relevant documents – Defendant herself had been found to be in breach f contract and she could not be permitted to take advantage of her own wrong – If plaintiff was in breach of contract, defendant in law and equity was under obligation to provide reasonable time to plaintiff for performance of his part of contract before resorting to hasty and abrupt revocation of contract before expiry of thirty days – No stipulation existed in the agreement that in case of plaintiff’s failure to perform his part of contract, same would stand revoked – Only stipulation in agreement was that on plaintiff’s failure to make payment as indicated earnest money would stand forfeited – Courts below had rightly found that time was not of the essence of contract – Concurrent findings of fact did not suffer from misconception of law or misconstruction of evidence – Supreme court dismissed appeal in circumstances. PLD 2003 SC 430  Vendor entered into agreement to sell with plaintiff on payment of Rs. 26,000, but later on sold the land to subsequent vendees for Rs. 1,00,000 – Trial Court dismissed plaintiff’s suit – High court in revision enhanced decretal amount of Rs. 26,000 to Rs. 1,30,000 – Validity – Vendor had not challenged such increase of decretal amount – thus, he was bound to pay the same – present value of property according to parties was more than Rs. 2,00,000 – if property had so much escalated in value, then amount paid by plaintiff had equally escalated in similar proportion – Value of currency had gone down due to high inflationary trends in economy – Plaintiff and his legal heirs needed to be compensated for torture of protracted litigation for last 22/23 years – Had amount paid by plaintiff been invested, same would have enhanced in value at least ten times – Plaintiff was entitled by all means to such compensation – Supreme Court converted petition into appeal and after partially accepting same granted decree to plaintiff for recovery of Rs. 2,30,000, out of which decree against vendor would be of Rs. 1,30,000 and against subsequent vendees would be of Rs. 1,00,000. PLD 2003 SC 494 Both the parties blamed each other for a not completing the contract – Property in question was sold to another party which took the plea that he was a bona fide purchaser without notice of any prior agreement to sell – Contention of the subsequent purchaser was that he had discharged his burden of proof by stating that he had no knowledge of the prior agreement to sell – Plaintiff stated that they were in possession of the property and resultantly, such fact was sufficient to put the prior agreement to sell – Plaintiff stated that they were in possession of the property and resultantly, such fact was sufficient to put the prior purchaser to the notice of the agreement to sell – Validity – Prior agreement to sell did not mention that the possession had been delivered not any documentary evidence had been led, to prove the fact, which could have put the subsequent vendee to notice to inquire about the nature of the possession – Findings of the Appellate Court on the issue being against the record and the law, could not sustain which were set aside and that of Trial court restored. PLD 2003 Lah. 542  Filing of ejectment petition by petitioner against respondent and suit for specific performance of agreement to sell by respondent against petitioner during pendency of ejectment petition. Striking off defence of petitioner in suit for specific performance. Suspension of operation of impugned order and permission for filing written statement by High Court (Single Bench) When another counsel appeared and requested that he had been engaged on same day by petitioner who was not in Pakistan, rather he was abroad, request could be granted by court as no punative action was called for and court did not indicate in any order that it is last opportunity for submission of written statement. In previous order he had written that only in the interest of Justice one opportunity was given. Moreover, no warning was given in previous order to petitioner that if he does not submit written statement and also written reply punitive action will be taken against him. Moreover, eviction petition is still pending adjudication before Rent Controller and suit for specific performance also relates to same subject matter of property and petitioner cannot be deprivecftrom narrating facts in written statement which enables court to formulate issues on pleadings of parties. Impugned order being violative of settled proposition of law is hereby set aside. P.L.J.1998 Lah. 1082 = 1998 CLC 824.Contention of defendant (allottee) was that such agreement was void and unenforceable owing to restriction placed on her by S. 19(2) of Cooperative Societies act, 1925 and Bye-Law 17(3) of Bye-Laws of Lahore Cantonment cooperative Housing Society – Validity – Defendant in preliminary objections had only asserted that agreement was void and unenforceable, but had not even indirectly pleaded such bar – Such plea had not been pressed before High Court – Fact that plaintiff was not member of society had neither been pleaded nor even alluded to – Restriction on power of an allottee of pot in Society to transfer same to a non-member might be a question of law, but the circumstance, whether plaintiff was or was not a member of society was certainly a question of fact, which ought to be pleaded before building any argument on the same – Common practice between allottee-members of a Society to part with rights and interest in share capital or property allotted to them in Society in favour of a third party and society was generally not arrayed as party to agreement or suit – Dispute essentially remained between vendor and vendee – Supreme court disallowed the defendant to raise such objection and dismissed his appeal. PLD 2003 SC 430 Trial court rejected plaint under O. VII, R. 11, C.P.C. on the ground that jurisdiction of civil Court was barred under Ss. 32 & 33 of Arbitration Act, 1940 – Appellate Court and High court maintained such order in appeal and revision respectively – Validity – Award related to distribution of assets of predecessor of both the parties – Plaintiffs had been simply awarded certain amount and extra land as compensation out of property left by their predecessor – Record showed that defendants had distributed property left by their predecessor on their own at different places – Bar contained in Ss. 32 & 33 of Arbitration Act, 1940 would not be attracted to plaintiffs for being not parties to award – Plaintiffs would be affected by terms of award as property left by their predecessor had been divided and settled thorough same without associating them – Supreme Court converted petition into appeal and allowed the same while remanding case to Trial court for decision afresh. 2004 S C M R 76 Suit for specific performance of sale agreement ended into compromise. As per agreement petitioner failed to deposit said amount by specified date, respondent filed application for execution of consent decree. Court ordered petitioner to ensure completion of sale-deed in favour of respondent by specified date. Petitioner, instead of executing sale-deed in favour of respondent, filed in Trial Court application under S. 12(2), C.P.C. for setting aside decree passed against her. Petitioner’s application was-dismissed by Trial Court as also by High Court. High Court in its impugned Judgment had taken note of fact that sale agreement in favour of respondent was witnessed by husband of  petitioner. Petitioner had not disowned compromise. Petitioner having moved application for extension of time to deposit amount specified in compromise order would show that she had relied on decree, now challenged to be fraudulent. High Court had correctly found that no fraud had been committed and that Trial Court had passed valid order in dismissing petitioner’s application under S. 12(2), C.P.C.  P.L.J.1997 SC 1834 = 199’7 SCMR 1608 = NLR 1997 Civil 535.  Question before Court was whether agreement to sell is genuine document. When Expert was produced to depose in respect of disputed document, court should have not taken responsibility of comparing signatures of appellant with that of disputed document. In such case it was bounden duty of Respondent No. 1 to 23 to have requested court for sending document for comparing of writings to another Expert. Secondly, when first Appellate Court had assessed evidence produced by parties before trial court, second appellate court ought not have assessed evidence. Scope of reassessment of evidence is limited in second appeal unless its case of non-reading/ misreading. Second Appellate Court has misused its Jurisdiction. Its Judgment suffers from this inherent defect. Appeal accepted.  P.L.J.1996 SC 533 = 1996 SCMR 575.  Sale agreement which was registered document was produced in Court and besides marginal witness, scriber of document was also produced in Court to support sale agreement. Defendant’s claim that he h’ad thumb-marked document in question, on assumption that the same was lease deed and not sale-deed as had been agreed between parties. Defendant thus, had not disputed thumb-impressions on document in question and he had not even disputed, presence of witnesses mentioned in document of sale.  Marginal witness and scriber of sale-deed testified before Court that sale deed was executed on instructions of defendant and that after hearing contents of document he had signed the same in their presence. Plaintiff, thus, had discharged onus to prove agreement which was otherwise registered deed. Defendant having taken contra version was legally bound to prove that he did not intend to execute sale agreement but intended to execute lease deed but he failed to do so. Defendnat’s objection that second witness was not produced was of no effect, in as much as, besides marginal witness, deed writer was also produced who was practically witness of document as he had claimed that such document was scribed on the instruction of defendant and that the same had been attested in his presence. Objection of recording statement of one of plaintiffs after evidence of defendant having not been raised before Trial Court and even in grounds of appeal could not be allowed to be raised at the stage of argument for the first time before High Court. No misreading of evidence or error of law having been pointed out, no interference was warranted in Judgment and decree of Trial Court. Plaintiff was directed to deposit balance amount in Court by specified date if the same had not been deposited so far.  P.L.J.2000 Lah. 1956.  Concurrent findings by courts below are in favour of respondent. It would be too much for’ respondent to be deprived of property, which was agreed to be sold to him ten years back and of which he paid 5/6 part of price. It would be inequitable as well as immoral to deprive respondent of fruit of sale agreement.  P.L.J.1997 SC 681 = 1997 SCMR 1006 =  NLR 1997 Civil 558. Concurrent findings of Courts below on basis of weight of evidence. Concurrent findings on sale consideration were correctly arrived at and they were not against weight of evidence. Defendants stand was evasive with regard to their assertions in written statement while it was proved in evidence that litigation had concluded; that upper portion of house in question, had gone to another party; that permanent transfer deed was ready for delivery and that the same had not been collected by defendants to avoid execution of agreement in question. Nothing was brought in evidence by defendants to show that ‘transaction m question, was unconsciousable and oppressive, therefore, concurrent findings arrived at by two Courts-below were well reasoned, supported by evidence on record, and being not against law, would not call for interference.-P.L.J.2000 Lah. 474. Suit for specific performance on basis of agreement to sell was dismissed by Appellate Court in post remand proceedings. Appellate Court had incorrectly found that agreement to sell was not valid agreement enforceable under law, in as much as, when defendant had executed the same he was not owner of land in question. Person entering into agreement of sale of property having imperfect title, however, would bound to make the contract on subsequently acquiring interest in such property. Agreement to sell, thus, became enforceable by petitioner (plaintiff) through Courts when’ executant/ defendant acquired interest in property in question. Agreement to sell in favour of plaintiff was also prior in time than that of agreement of association entered into between defendants inter se. Evidence on record established that defendant (vendor) had backed out of agreement to sell on acquisition of title and had entered into agreement of association with co-defendant without consent of plaintiff. Plaintiff was thus, bona fide purchaser of property in question, for value co-defendant having subsequently entered into agreement with vendor (defendant) with knowledge of prior agreement to sell, therefore, he was not entitled to protection in terms ofS. 27, of Specific Relief Act 1877. Dismissal of plaintiffs suit being based on misreading of evidence and the law, was set aside and plaintiffs suit was decreed on direction that he would deposit remaining price of land in Court before specified date.  P.L.J.2000 Lah. 1987 Plaintiffs suit was decreed by trial Court, while in appeal the same was dismissed. Validity. Deceased owner i.e., predecessor of defendants had entered into valid, agreement with plaintiff through his attorney duly constituted by him. Execution of registered General Power of attorney was not denied by attorney of defendants while appearing as only witness on behalf of defendants. Agreement in question, was even proved through scribe and marginal witness. Trial Court had, thus, rightly decreed plaintiff’s suit. Judgment of First Appellate Court dismissing plaintiff’s suit was based on mis-leading and mis-construction of oral and documentary evidence, placed on record and the same was not sustainable in the eye of law. Defendants, title having become clear on 11.4.1984 on basis of decision of litigation going on relating to property in question, suit filed on 27.3.1985 was well within time. Judgment and decree passed by First Appellate Court dismissing plaintiffs sent was set aside while that of Trial Court decreeing plaintiff’s suit was restored in circumstances.  P.L.J.1999Lah. 1795. Suit for specific performance of agreement to sell decreed by Trial Court and the High Court. Concurrent finding of fact could not be interfered with by S.C.in appeal in as much as such finding did not suffer from any misreading of evidence or non-consideration of relevant pieces of evidence on record. Such finding being one of fact and based on evidence was un-exceptionable. Execution of agreement of sale having been admitted burden of proving that the same was void or invalid was entirely on appellants which they failed to discharge. Material on record clearly indicated that resolution of gen’eral body of appellants of specified date relating to sale of property in question, was passed validly, therefore, decrees of Courts below including the High Court on such question of fact being valid were maintained in circumstances.  P.L.J.2000 SC 1708 = 2000 SCMR 506.

 

Agreement to sell whether executed and proved between parties stamp paper does not indicate to have been purchased from person who was alleged by plaintiff to have sold and Scribed in same-Scribed of alleged agreement was not produced in evidence-Material contradictions were found in statement of marginal witnesses with regard to date, time, place and execution of agreement in question-Marginal witnesses had admitted in their statement that neither any agreement to sell was executed nor any amount was counted in their presence and that they had simply affixed their signatures upon agreement to sell-Discrepancies in their statement, with regard to their relationship with plaintiff was apparent on record-Marginal witnesses had contradicted each other in their statements-Agreement to sell was not proved to have been entered or executed between parties, PLD 2003 Lah.125

 

Contention that by executing agreement of sale, which had not been proved, and which had been withheld in evidence in spite of several adjournments granted to tenant, finding given by Rent Controller regarding existence of relationship of landlord and tenant and admission of tenant that he did not pay rent from date of execution of alleged agreement, whether order of ejectment passed by Rent Controller was not open to interference by High Court. Leave is granted. Tenant had failed to establish on record that relationship of landlord and tenant did not exist between parties to ejectment proceedings. Rent Controller had given several chances to tenant to produce his eviddnce in support of his contention but in spite of repeated adjournments he failed to produce his evidence resulting to closing of his side and directing his ejectment. Fact that landlords were handed over possession of premises through execution of order of Rent Controller and tenant’s suit for specific performance of alleged agreement to sell having been dismissed by Trial Court and appeal there against having been returned to tenant on account of non-payment of court-fee and non-prosecution, would not Justify remand of case by High Court to Rent Controller for fresh decision. Order of High Court remanding case to Rent Controller was set aside and order of ejectment of tenant was restored.-P.L.J.1997 SC 433 = PLD 1997 SC 73.

 

Courts below had concurred that the plaintiff had failed to prove execution of agreement of sale‑‑‑Plaintiff had not produced the vendor of stamp paper nor the scribe of the said agreement in rebuttal‑‑‑No reliable evidence was on record to prove that the plaintiff was inducted in possession of suit land as a tenant‑‑‑Finding of the Appellate Court that agreement to sell had not been proved, was unexceptionable and was upheld‑‑‑No question of law and fact arose which could merit interference with judgment and decree of Appellate Court‑‑­Appeal being meritless -was dismissed. 2001 Y L R 2145

 

Defendant (owner) neither contested suit nor did he put in appearance in Court despite service-Defendant (owner) had as per proof on record received specified amount from plaintiff under agreement in question-Judgment and decree of Trial Court in favour of plaintiff was set aside and instead decree for recovery of amount in question, was passed in plaintiff’s favour against defendant owner. Defendant (vendee) had taken plea in his written statement that he was bona fide purchase for consideration without notice of sale agreement in question-Plaintiff was fully aware of plea taken by defendant in his written statement which plea was incorporated in issue to that effect – Onus of such issue which was in negative, stood discharged by said plea of defendant and his statement in witnesses box – Plaintiff, however, did not lead any evidence either in affirmative or in rebuttal that plaintiff had notice of agreement to sell-Defendant’s statement in cross-examination that he was never told by plaintiff about agreement to sell – Such statement was sufficient to shift burden on plaintiff which he never discharged-Judgment and decree in favour of plaintiff on the basis of agreement to sell was set aside, PLD 2003 Lah.170

 

Defendant denying his signature/thumb‑impression on agreement to sell, whereupon plaintiff applied for summoning defendant for verifying his thumb‑impression on agreement‑deed‑‑‑Trial Court rejected plaintiff’s such application but the same was accepted by revisional Court‑‑­Validity‑‑‑Main grievance of defendant was that he was yet to be examined in Court, so there was no need of summoning him for verifying his thumb ­impression on agreement in question‑‑‑Perusal of record showed that defendant was being represented through his attorney and there was every likelihood that defendant might not appear in Court‑‑‑Revisional Court had accepted revision to forestall such eventuality and directed defendant to appear in Court to verify contents of document including his thumb‑impression‑‑‑Impugned order of Revisional Court did not suffer from any illegality. 1998 C L C 1325

 

Document in question was receipt whereby defendant’s agent had received specified amount on behalf of his principal with condition attached thereto, that if defendant did not agree to sale of property in question, then the deal would not got through and plaintiff would be entitled to refund the money which he had advanced as earnest amount. Defendant did not agree to sell property in question and sold the same to some one else. Plaintiffs entitlement to seek specific performance agreement to sell. Stipulation in agreement to sell would indicate that Plaintiff at the very inception of the agreement had agreed to abandon his right to seek specific performance of agreement and also absolved defendant of all his liabilities under such agreement whatsoever in case transaction of sale was not compeleted. The receipts produced by the Plaintiff were not showing the essential terms of sale consideration, time for completion of sale, payment of balance of sale consideration thus the receipts were not agreement to sell.  P.L.J.1998 Pesh. 166 = 1998 CLC 1397.

 

If contract provided for a specific amount as damages, its specific performance whether can be granted or not. As far as first consideration to refuse specific performance of contract is concerned, explanation to Section 12 of Specific Relief Act to effect that unless and until contrary is proved, Court shall presume that breach of a contract to transfer immovable property cannot be adequately relieved by compensation io money, escaped notice of learned Courts, provisions of Section 20 of said Act also escaped consideration of learned Courts. Refusal to grant specific performance on ground that agreement provided for penalty is not sustainable.-P.L.J.2000.Lah. 1485.

 

In absence of independent evidence regarding execution of disputed agreement of sale and evidence produced by alleged vendee not inspiring confidence, Court below had rightly found that no agreement of sale was executed in favour of vendee by vendor and suit for specific performance of alleged agreement of sale filed by plaintiff/alleged vendee was not maintainable‑‑‑Judgment and decree passed by Court below not suffering from any illegality, could not be differed with. 1993 C L C 2439

 

Mala fide of plaintiff was apparent from the very prayer of specific performance of contract Situation seemed to be novel where plaintiff (contractor) during execution of contract, performance where of had already started, seeks specific performance thereof against defendant (Government) and at the same time runs away himself leaving structure to obvious wear and tear of seasons–Even defendant Government and its functionaries did not realize that plaintiff contractor should have been dealt with in accordance with the rules as well as the terms of contract–Contract in question, should have been cancelled and re-tendered at the risk and cost of plaintiff contractor–Petition for leave to appeal was, thus, controverted into appeal and Judgments and decrees of Courts below were set aside resulting in dismissal of plaintiffs suit–Plaintiff apart from costs through out was also burdened with special costs.  P.L.J. 2002 SC 1173

 

Parties during pendency of appeal before Additional District and Sessions Judge made statement to the effect that matter be referred to District Judge for decision as a Referee—District Judge gave his decision and also appeared in the Court and got recorded his statement on oath—Parties accepted the same and appeal was disposed of in terms of decision of Referee—Defendant being not satisfied with decision of District Judge filed appeal before High Court which was dismissed— Validity—Leave to appeal was granted to examine the contention, as to whether statement made by the Referee would be considered as an information made under Art.33, Qanun-e-Shahadat, 1984 or in view of his statement which he got recorded in the Court same would be treated as an Arbitration award in view of Supreme Court decision in Ghulam Farid Khan v. Muhammad Hanif Khan 1990 -SCMR 763.  2000 SCMR 828

 

Plaintiff an Advocate of vendor lady in different litigations relating to her lands, had claimed that lady had agreed to sell disputed land for consideration through agreements of sale arrived at between him and vendor lady. Lady who allegedly executed contract of sale having died, her grandsons who were made defendants in suit had alleged that deceased who was a Pardanashin lady Was over 100 years of age at time of execution of alleged agreements of sale and was incapable of exercising her free consent and that deceased lady was absolutely illiterate and plaintiff in his capacity as her standing counsel might have got several documents thumb-impressed by her without appraising her of their implications. Court had concluded that alleged agreements of sale executed by lady were not binding on defendants as plaintiff was unable to discharge burden of satisfying Court that she had executed agreements with full knowledge and consent. Status. Vendor lady who was proved to ‘be Pardanashin and illiterate was entitled to protection which law had afforded to illiterate and Pardanashin women and said protection was different from open fraud or misrepresentation vitiating a contract. Allegation of fraud must be proved by a person alleging same, whereas when a transaction was made by a Pardanashin lady, onus was always on person claiming advantage of such transaction to show that same was made with free-will of Pardanashin lady. No fault could be found with Judgment of Court on ground that Court had examined said question irrespective of fact that fraud was not proved in transaction.-P.L.J.1999 Kar. 839 = 1999 CLC 1057.

 

Plaintiff in support of his claim introduced forged and fabricated document whereby he had allegedly paid the balance amount to defendant‑‑‑Such document on comparison of signatures was proved to be forged and fabricated one‑‑‑Judgment and decree granted by Court below was set aside by High Court in circumstances. 1996 M L D 269

 

Plaintiffs producing two agreements one agreement suggested that defendants had agreed to sell property in question and had received earnest money‑‑‑Subsequent agreement contained acknowledgement of defendant that he had received balance amount‑‑­Defendant admitted earlier agreement but subsequent agreement was not acknowledged by him and he stated that the same was forged and fabricated‑‑­Subsequent document being questioned document was sought to be proved and disproved by both parties by producing Handwriting Experts‑‑‑High Court examined Handwriting Experts’ reports, photographs prepared and original agreement and after comparing the admitted agreement with the disputed document came to conclusion that signatures of defendant (appellant) was a crude attempt to forge his signatures on the disputed one‑‑‑By comparison of admitted signatures and disputed signatures, there seemed to be a marked difference between both the signatures‑‑‑Admitted signatures showed fluency, same angles, same spacing which one gets used to with passage of time‑‑‑In disputed signatures crude effort had been made to copy the signatures and whole attention of forger was on copying the words and he completely missed other characteristics of signatures viz. size of signatures, words, angles and spaces between different parts of name besides there was no fluency‑‑­Difference in two signatures was so clear that it did not require any expert opinion to hold that signatures on disputed document were forged and that forgery was done in great haste‑‑‑Subsequent document was thus a forged document and claim for specific performance on basis thereof, was not sustainable. 1996 M L D 269 Allah Rakha v. Sadhu Masih and others 1982 CLC 2352; Lt.‑Col. Muhammad Yusuf, Commissioner, Quetta Division v. Syed Ali Nawaz Gardezi PLD 1963 (W.P.) Lah. 141; Nawab Din v. Ghulam Oadir and 9 others 1994 MLD 1275; Muhammad Khan and others v: Muhammad Boota and others 1994 MLD 1622; Muhammad Irshad and others v. The State 1994 MLD 1299; Nowab Meah Chowdhury v. Syed Ezaz‑ud‑Din Ahmad and others PLD 1962 Dacca 655; Mir Hasmat Ali v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56; Bank of Bahawalpur Ltd. v. Punjab Tanneries, Wazirabad Ltd. and 2 others PLD 1971 Lab. 199; Ahmad Bakhsh v. Mst. Zeb Illahi PLD 1981 BJ 60; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; Abdul Kadir v. Mir Ashraf Ali Khan and 2 others 1982 CLC 110; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Abdul Aziz and another v. Abdul Relunan and others 1994 SCMR 111; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Muhammad Anwar Khan Ghouri v. Sheikh Muhammad Taqi PLD 1977 Kar. 391; Fazal Muhammad v. Muhammad Usman PLD 1970 Lah.560; Haji through his Legal Heirs and others v. Khuda Yar through his L.Rs. PLD 1987 SC 453; Muhammad Safdar Ansari and another v. Abdul Majeed PLD 1988 Lah.216; Ch. Nazar Muhammad and others v. Shafiq Ahmad Khan and others PLD 1963 (W.P.) Lah.23; Marker Employees’ Union v. Marker Alkaloids Ltd. and others 1976 SCMR 82; Taj Din v. Abdur Rehman PLD 1963 (W.P.) Kar. 825; Abdul Majid v. The State PLD 1976 Kar. 762; Mushtaq Ahmad Gurmani v. ZA. Suleri and another PLD 1958 (W.P.) Lah.747; Ansar Ahmed v. Bank of America, Kar. PLD 1975 Kar. 252; Saleh Muhammad and others v. Subedar Major Muhammad Bakhsh PLD 1960 (W.P.) Lah.231; Rahim Bakhsh v. Ghulam Muhammad and another 1983 SCMR 1137 and Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref.

 

Respondent admitted the execution of agreements in her first written statement and in her cross‑examination; but she subsequently in amended written statement took the plea that agreements were fictitious, forged and fraudulent‑‑‑Trial Court decreed the suit, but was set aside by Appellate and Revisional Court‑‑‑Validity‑‑‑Admission made by respondent in her first written statement would be binding on her under Art.113 of Qanun‑e-­Shahadat, 1984‑‑‑Such admission stood corroborated by, her own further statement made in cross‑examination with regard to due execution of agreements and passing of consideration, besides overwhelming oral and documentary evidence of appellant and her marginal witnesses‑‑‑Subsequent denial of execution of agreements and receipt of amounts stated therein, and non‑mentioning of Identity Cards of respondent and marginal witnesses in the agreements would not make them doubtful‑‑‑Respondent could not be allowed to lead oral agreement or make statement to contradict, vary, add or subtract the terms of agreements, which were reduced into writing under Art.103 of Qanun‑e‑Shahadat 1984‑‑‑Inconsistent conduct and denial of admitted facts by respondent proved that she had not come to Court with clean hands‑‑‑ S. C. allowed the appeal and set aside the impugned judgments and decrees and restored that passed by the Trial Court. 2002 S C M R 326  Muhammad Zahoor v. Lal Muhammad and others 1988 SCMR 322 ref.

 

Respondent’s plea was that parties had agreed to execute lease agreement, but appellant in connivance with petition‑writer and marginal witnesses got it executed as agreement to sell ‑‑‑Respondent also filed suit for cancellation of agreement to sell being based on fraud and ineffective on his rights‑‑‑Both the suits were consolidated‑‑‑Trial Court decreed appellant’s suit and dismissed respondent’s suit holding that appellant had proved by examining one marginal witness and scribe of agreement that it was executed as agreement to sell‑‑‑Respondent’s appeal was dismissed by Appellate Court, but his revision petition was accepted by High Court‑‑‑Validity‑‑‑Respondent had neither denied execution of agreement nor appellant’s possession over suit‑land nor had claimed relief for getting its possession from appellant in suit for cancellation of agreement‑‑­Neither any jurisdictional defect nor non‑reading and misreading of evidence could be pointed out in judgments/decrees passed by Trial Court and Appellate Court‑‑‑High Court had interfered with such concurrent findings without indicating misreading or non‑reading of evidence or the same being in any way in violation of law‑‑‑High Court had granted relief to respondent on the ground not raised either in written statement or during trial‑‑‑ S. C. accepted appeals with costs and set aside judgment of High Court. as a result of which judgments/decrees of Appellate Court were restored. P L D 2002  S. C. 293

 

Specific amount had been passed on to defendant as earnest money‑‑‑Plaintiff had mainly based his claim on second agreement whereby he allegedly had passed on the balance sale amount‑‑‑Such document was adjudged to be forged and fabricated one‑‑­Plaintiff at the stage of proceeding or during argument in appeal took up position that in case subsequent agreement was excluded from consideration he was prepared to perform his part of contract in terms of earlier agreement‑‑‑Agreement of sale which had been scribed earlier was only meant to secure amount in question (earnest money) and parties never meant transfer of property‑‑‑Even if everything was accepted High Court would have refused specific performance on account of dubious conduct of plaintiff‑‑‑Discretion of Court neither in case of declaration nor in suit of specific performance could be exercised in favour of a party which indulged in forging and fabricating of document in order to deprive others of their valuable property and try to cheat the Court‑‑‑Plaintiff was thus, not entitled to decree for specific performance of agreement to sell. 1996 M L D 269  Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; Nawab Meah Chowdhury v. Syed Ezaz‑ud‑Din Ahmad and others PLD 1962 Dacca 655; Mir Hasmat Ali v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56 and Muhammad Khan and others v. Muhammad Boota and others 1994 MLD 1622 rel.

 

Stamp paper does not indicate to have been purchased from person who was alleged by plaintiff to have sold and Scribed in same-Scribed of alleged agreement was not produced in evidence-Material contradictions were found in statement of marginal witnesses with regard to date, time, place and execution of agreement in question-Marginal witnesses had admitted in their statement that neither any agreement to sell was executed nor any amount was counted in their presence and that they had simply affixed their signatures upon agreement to sell-Discrepancies in their statement, with regard to their relationship with plaintiff was apparent on record-Marginal witnesses had contradicted each other in their statements-Agreement to sell was not proved to have been entered or executed between parties, PLD 2003 Lah.125

 

Subsequent vendee while appearing in witness-box had not stated that he was not aware of previous agreement to sell executed by vendor respondent in favour of plaintiff-Evidence and circumstances clearly showed that subsequent vendee had knowledge of agreement to sell entered into by vendor lady with plaintiff before sale-deed which was executed and registered in his favour – Findings of Courts below non­ suiting plaintiff were set aside and plaintiffs suit was decreed with direction to deposit remaining sale price within specified period.  PLD 2003 Lah.49

 

“Lease” and “licence”. Nature and distinction. Licence merely would grant licence/permission to enter Upon licensor’s property and do something,  which in absence of such grant, would be unlawful. Such grant of permission would amount to a licence as per S. 52, Easements Act, 1882. If such a grant would create an interest in property, same could not be construed as a “licence” and in that connection intention of parties would also have to be considered. Plaintiffs to Whom plot in question was allotted had paid substantial amount to defendant Authority. One of terms of allotment was that industrial unit for which plot was allotted, should be completed within specified period, but plaintiffs were unable to do so on account of failure of Authority to provide infrastructure facilities agreed to between parties. Plaintiffs, in circumstances, could not be penalised on that score. Subsequent correspondence between parties also established that right from very beginning, intention of parties was to construct building of permanent nature on plot in question. Transaction between parties, in circumstances, amounted to agreement to “lease” rather than “licence”.  P.L.J.1999 Kar. 687 (DB) = 1999 CLC 1076.

 

Acknowledgment giving fresh start to the period of limitation – Deed on the basis of which the suit was filed was executed on 28-8-1992 whereas the suit was filed on 11-4-1997 –  To bring the suit within limitation the plaintiff relied on an acknowledgement receipt duly made on 24-5-1996 –  Defendant contended that the suit was time-barred – Validity – Where the deed was executed on 28-8-1992, the suit was to be brought on or before 28-8-1995 – Acknowledgment alleged by the plaintiff was much beyond the initial period of limitation and the plaintiff could not be benefited from the same – Suit qua the money claim was barred by time accordingly. PLD 2002 Pesh. 1

 

Agreement to sell. Execution of. Defendant was not owner of land in question, when such agreement was executed. Defendant having subsequently acquised proprietary right, of land in question, effect of previously executed agreement to sell. Agreement to sell, by grantee of property vesting in Government would become effective after vesting of property in grantee. Such transaction was not hit by S. 19, Colonization of Government Lands (Punjab) Act 1912. Agreement of sale had to be proved or disproved on its own and previous’litigation between executant and plaintiffs sons had no bearing on it. Agreement in question, has to be decided in the light of evidence brought on record as to whether such agreement was ever executed by alleged vendor in favour of plaintiff or not. Plaintiff had fully discharged onus of proving agreement to sell in his favour by producing cogent evidence. Defendants having failed to rebut such evidence, presumption has to be drawn, against them-and in favour of genuineness of such disputed documents. Only conclusion -which could be drawn from evidence available on record was, that vendor had executed agreement to sell in favour of plaintiff, therefore, wrong and illegal conclusion had been drawn by First Appellate Corrt Judgment and decree of First Appellate Court dismissing plaintiffs suit was set aside while, that of trial -Court decreeing plaintiff’s suit was resorted.  P.L.J.2000 Lah. 682.

 

Agreement to sell. Proof. Opening of new bank account in the name of appellate on the eve of agreement to sell. Withdrawal of such amount of appellant. Respondent (Plaintiffs) evidence to the effect that such amount which was a substantial portion of sale amount had been deposited by him in the name and with consent of appellant (defendant) would fully prove that agreement to sell was intact effected especially when appellant produced no evidence in contradiction of such fact. Agreement to sell was thus, proved. Grant of decree for specific performance of agreement being discretionary and equitable relief, S.C.in the interest of Justice exercised its discretion in favour of appellant and raised amount of remaining consideration of Rs. 2000/- to Rs. 1,00,000 on account of inflation in the value of currency. Judgment and decree of High Court in decreeing respondent’s suit was maintained in circumstances.- P.L.J.2001 SC 256.

 

Application for ejectment of tenant. Landlord setting up agreement of sale against the same. Effect. Agreement of sale did not confer any title unless the same had been determined in favour of tenant by competent Court of Jurisdiction. Rent Controller, thus, fell in error in holding that relations of landlord and tenant between parties could be determined after final decision of suit pending before Civil Court. Tenant during pendency of suit for specific performance of agreement where landlord was not even a party, could (not be allowed by challenging title of landlord and retain possession of premises in question. Landlord was, therefore, entitled to seek eviction, of tenant. Tenant was directed to vacate premises within specified period.  P.L.J.1999 Qta. 27 = 1999 MLD 2117.

 

Breach of contract — Only two remedies are available to the aggrieved person, either to seek specific performance of the contract, or to seek for damages – Where specific performance cannot be granted under the law, as a substitute, the plaintiff is not entitled to file a suit for declaration or for that matter a suit for perpetual injunction, 2002 CLC 77   Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531; Kar. Shipyard Works v. Muhammad Shakir Sheikh 1993 CLC 330 : Shahid Mahmood v. KESC 1997 CLC 1936; Alvi Sons v. Government of East Pakistan PLD 1968 Kar. 222 and M. Farooq v. Suleman A.G. PanJwani PLD 1977 Kar. 88 ref.

 

Burden of proof‑‑‑Suit for specific performance of contract based on agreement to sell‑‑‑Onus to prove such contract would lie on plaintiff unless its existence was admitted by defendant. 2002 S C M R 1089

 

Cancellation of Allotment:– Plaintiff had paid substantial amount for booking/allotment of premises. Allotment could not have been cancelled without giving clear notice “to plaintiff. Terms and conditions showed that defendant was entitled to cancel booking of premises after expiry of 15 days’ notice. Letters sent by defendant to plaintiff did not stand test prescribed by defendant itself nor those letters mentioned that premises in question had been allotted to a third party. In absence of valid and lawful cancellation of booking held by plaintiff, no rights could be created in favour of third party who being subsequent allottee could not assert any claim during subsistence of allotment in favour of plaintiff. Defendant or any other person claiming through or under it, could not be permitted to take any further steps in relation to premises in question so as to adversely affect interest of plaintiff. Defendnat was directed to maintain status quo with regard to premises in question, during pendency of suit, subject to plaintiff depositing balance amount of sale consideration with Nazir of Court within specific period.  P.L.J.1997 Kar. 1228= 1997 MLD 3049.

 

Cause of action – Agreement of sale which provided basis for institution of the suit was admitted by the defendant and the contract evidenced by said agreement was sought to the specifically enforced – Cause of action had accrued to the plaintiff to bring the suit. PLD 2002 Kar. 333

 

Condition of deposit of balance consideration amount – Agreement, in the present case, between the parties was not a simple agreement in nature of sale purchase of immovable property, rather it was for development of the suit sales, though within a Specified period as stipulated in the agreement— Trial Court granted interim injunction with a condition to deposit the balance consideration amount— Validity – Not rule of law that essentially in all the cases of specific performance, while granting temporary injunction to the plaintiff, the Court should impose condition to deposit of balance consideration— Imposing of such condition depended upon facts and circumstances of the case enabling the court to exercise its discretionary equitable relief – As the defendants prima facie were found at fault in not handing over the entire suit land to the plaintiffs for the purpose of such development, imposition of condition for the deposit of the balance consideration in the facts and circumstances of the case, would be harsh and against the settled rules for the exercise of discretion – Plaintiffs had established existence of prima facie case in their favour, for it was they who were to suffer irreparable loss in case temporary injection was not issued and the condition of deposit of the remaining amount of consideration was not legally justified – present agreement being not in the nature of direct sale but an agreement for development of the land into plots and thereafter sale of the developed plots and payment of the amount of consideration from the sale proceeds, therefore, the order of deposit of Rs. 42 crores amounted to denial of the relief of temporary injunction to which the plaintiffs were entitled— High Court set aside the condition of deposit of balance consideration amount imposed by the Trial Court at the time of passing the interim injunction – Interim injunction was allowed in circumstances.    PLD 2003 Lah. 17    

 

Consent—Definition of “consent” or free-consent in Contract Act, 1872 applies to provisions of Specific Relief Act under residuary clause of S. 3 of Specific Relief Act. 1982 SCMR 741.

 

Declaratory suit. Based on unproved agreement. Alternate plea of specific performance of contract. Whether can be pressed. So far as alternative plea of specific performance of contract is concerned, same has no substance as how could petitioner press for such plea when agreement contract has not been proved.- P.L.J.1996 Lah. 1418 = 1996 MLD 252.

 

Defendant termed such agreement to be a forged document‑‑‑Trial Court dismissed the suit‑‑‑Validity‑‑‑High Court on plaintiffs’ request got thumb‑impression of defendant and compared the same with thumb‑impression on disputed agreement attributed to defendant, and found marked difference between the two‑‑­High Court refused to get an expert opinion in the matter as such difference was evident and clear to naked eyes‑‑‑Stamp paper of disputed agreement as per record was purchased from M, whereas suit‑land was situated at ML and agreement was executed at V‑‑‑Scribe of agreement was neither having licence as petition‑writer nor did he sign same nor he was in possession of relevant register, wherein disputed agreement was entered‑‑‑Marginal witness of agreement had been involved in 8/10 criminal cases‑‑‑Defendant had no male issue and one of the plaintiffs was his cousin, who had tried to grab the property of defendant‑‑­Statement of stamp‑vendor denying to have sold stamp paper of disputed agreement was not subjected to cross‑examination by plaintiffs‑‑‑Number of National Identity Card on disputed agreement attributed to defendant was also found to be incorrect when compared with his original National Identity Card‑‑‑Disputed agreement to sell was a forged document, which could not be relied upon. 2002 C L C 942

 

Deficiency of court-fee:– First Appellate Court while disposing of appeal found that court­fee had not been paid-Plaintiff’s application for extension in time to make deficiency in court-fee and another application that court-fee already deposited in treasury on specified date be treated to have been paid within time, were dismissed and ,appeal, besides being time-barred, was also dismissed on deficiency of court-fee–Finding of First Appellate Court did not suffer from any infirmity Justifying interference in second appeal–Findings of Appellate Court were maintained in circumstances. 1998CLC417 Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919 rel.

 

Doctrine of ratification –  One Co-Sharer entered into the agreement with the plaintiff, regarding his share as well as on behalf of the other Co-Sharers – Such agreement was executed without the consent and knowledge of the other Co-Sharers – Executant was not acting as attorney for the other Co-Sharers, while executing the agreement – Trial Court dismissed the suit to the extent of specific performance whereas the lower Appellate Court allowed the appeal arid decreed the suit – Validity – Where the executant was not acting as attorney and the other Co-Sharers were not aware of the agreement on their behalf, doctrine of ratification was inapplicable – Lower Appellate Court failed to take into consideration the essentials of the provisions of S.196 of Contract Act, 1872, but had restricted itself to draw inferences which were not Justified on the basis of evidence adduced by the plaintiff-Judgment and decree of the Lower Appellate Court were set aside and that of the Trial Court were upheld. 2001 CLC 595  Abdul Majid and 2 others v. Waris Ali and another 1999 YLR 1668; Imperial Bank of Canada v. Mary Victoria Begley AIR 1936 PC 193; Halsbury’s Laws of England, 2nd Edn., p.231; Health v. Chilton (1844) 12 M&W 632 and Easten Construction Co. v. National Trust Co., 1914 AC 197 ref.

 

Entitlement – Plaintiff has first to allege and prove that he was always ready and prepared to perform his part of contracts same really was.  PLD 2003 SC 430

 

Entitlement to claim enhanced sale price. Where agreement of sale was executed 10 years back, and on account of lapse of such a long time value of price had dimished due to de-valuafcion “of currency, vendor was allowed additional compensation.  P.L.J.1999 Lah. 1354 =  PLD 1999 Lah. 193.

 

Entitlement to specific performance of agreement of sale. Trial Court decreed plaintiffs suit by finding her entitled to specific performance of agreement of sale. Nothing was brought in record to suggest that plaintiff at any point of time was not willing to perform her part of contract. Sale agreement was not executed by defendants on pretext that stay order was in vogue relating to in question and when they informed plaintiff that stay order had been vacated, she demanded copy of vacation of stay order which was not supplied to her and she was obliged to file suit for specific performance of agreement of sale. In contracts relating to immovable properties, however time was not of essence and failure to perform part of contract by date fixed in agreement for sale i.e., executing sale deed was not a ground for refusing specific performance. Plaintiff’s suit had thus, been rightly decreed by trial Court.  P.L.J.1999 Lah. 1410 = PLD 1999 Lah. 238.

 

Entitlement-Plaintiffs claim of execution of agreement to sell was although admitted by defendant yet he claimed that same was revoked through Panchayat and that had refunded earnest money through receipt which he produced in Court-Material contradiction about refund of earnest money was not correctly appreciated by Trial Court-Appellate Court on basis of evidence on record rightly excluded decision of Panchayat from consideration – No illegality or irregularity had been committed by appellate Court in accepting appeal-Judgment and decree of Appellate Court was maintained and affirmed,-PLD 2003 Lah.123

 

Essentials to grant Injunction. Mere fact that evidence of plaintiff was complete except recording of statement of plaintiff himself and tendering of certain documents should not have weighed with learned Civil Judge so heavily as to deprive appellant of relief sought by him for which he had to knock various doors and finally go up-to Hon’ble S.C.of Pakistan. Prohibitory order should have been subjected to condition of depositing balance of agreed sale consideration in order to show bona fides of plaintiff.  P.L.J.1998 Lah. 140 = 1998 MLD 601.

 

Evidentiary value of entries in Nikahnama – Nikahname is deemed to be a public document whereby in consideration of marriage respondent had transferred land in question, to petitioner – Fault in stating said term against Column No. 20 in stead of column No. 16 would be attributed not any of the parties but to official who under the law was enjoined to fill up said document – Even in Column 20, Word “Mehr” is very much there – Averment that entry in Nikahnama was fictitious stood negated in the very statement of respondent himself in witness box – Judgments and decrees of courts below whereby plaintiff’s suit was dismissed were set aside and plaintiff’s suit was decreed. PLJ 2004 Lah. 280

 

Failure to cross‑examine a party to suit on vital aspect of case‑‑‑Where statement of defendant on vital aspect had neither been cross‑examined nor was he confronted with documents for purpose of identifying his signatures, such failure would lead to drawing adverse inference against plaintiff. 1989 C L C 2287 PLD 1985 Jour. 283; 1985 CLC 1974; S. Ali Nawz Gardezi v. Lt.‑Col. Muhammad Yusuf PLD 1963 SC 51; Muhammad Sher and others v. Muhammad Azim and another PLD 1977 Lah. 729 and Gaverdhan Dass v. Ahmadi Begum AIR 1953 Hyd. 181 ref.

 

Forfeiture of earnest money – Vendee had performed her part of contract and had paid more than 55% of the consideration amount to the vendor – Instead of performing his part of contract, the vendor did not complete the formalities and failed to execute the necessary transfer documents as per stipulation in the agreement, after receiving the balance consideration – Validity – Threatened action of vendor in forfeiting the amount was unconscionable as the he had received more than 55% of the consideration amount – When there was no condition in the agreement itself and the default in performance of the contract had been committed by the vendor, he was not Justified in equity to forfeit the amount unilaterally –  Vendee was entitled to the relief of specific performance of contract and was also entitled to the relief of injunction as admittedly the vendor had threatened the vendee with actions of cancellation of contract and forfeiture of the amounts already paid much against the spirit of the contract – Suit was decreed in circumstances. PLD 2002 Kar. 333

 

Interim injunction. Pre-requisifces. Plaintiff was required to prove three essential ingredients i.e, prima facie case; balance of convenience and irreparable loss to plaintiff” for grant of injunction. Impugned order whereby injunction had been granted lacked said essential ingredients of injunction in their true spirit and legal sense inasmuch as plaintiff had prima facie failed to prove that there existed valid, proper and legal contract between them, which could be enforced through Court of law. Balance of convenience  and irreparable loss to plaintiff in case of non-grant of injunction had not been proved by plaintiff nor the same were considered by Trail Court at the time of grant of injunction. Order of grant of injunction being not sustainable, was recalled in circumstances.-P.L.J.1998 Kar. 867 = 1998 CLC 760,

 

Limitation – Cause of action, in a suit for specific performance of contract, arises from the date fixed for the performance – Stipulated date, in the present case, was 6-7-1986 fro completion of the sale but the vendor died on 2-5-1986 before the stipulated date for completion of the contract – Provisions of S. 17(2), Limitation Act, 1908 would be applicable in circumstances – principles – Question of limitation is a mixed question of law and fact and cannot be decided without recording the evidence – order of District judge remanding the case to the Trial Court to decide the same after framing of the issues and recording of evidence, was not interfered by the High court. PLD 2003 Lah. 409  –>Period of limitation of three years for suit for specific performance has to be computed, in cases, where no date had been fixed for performance of the contract, from the date when plaintiff had notice that performance was refused–Defendant himself in his evidence admitted that he denied right/title of plaintiff about 8/9 months prior to institution of suit and that being the date of notice of refusal to plaintiff, suit was within time. 1995 C L C 309  Muhammad Yasin v. Allah Din 1991 CLC 1457 rel.

 

Mere inadequacy of consideration, held, no ground for refusing specific performance of contract in respect of immovable properties unless inadequacy was shown to be such which would shock conscience of Court while decreeing suit for specific performance or there were fraud or misrepresentation on part of plaintiff which induced defendant to enter into a contract for sale or there were certain circumstances under which plaintiff took improper advantage of his position or difficulties of defendant making him victim of his imposition. 1985 CLC 29.63.

 

 Non‑production of scribe or stamp vendor‑‑Plaintiff had neither produced the vendor of stamp paper nor the scribe of the agreement to sell and no explanation had been given for such non‑production ‑‑‑Non production of the scribe of the agreement to sell or the stamp vendor was fatal to the case of the plaintiff and adverse inference would also be drawn against the plaintiff for non production of the same. 2001 Y L R 2145

 

Payment of earnest money-No receipt relating to payment of money was produced-Marginal witnesses stated that no earnest money was paid in their presence-Trial Court on basis of such evidence had rightly concluded that neither any agreement to sell was executed nor any earnest money was paid-No interference was warranted in judgment and decree of Trial Court. PLD 2003 Lah.125

 

Pecuniary, compensation :– Specific performance of contract. Seeking of. Whether Pecuniary, compensation could not afford adequate relief. General rule of equity is that if “a thing is agreed upon to be done, though there is penalty annexed to secure its performance yet very thing itself must be done. On -the other hand it is certainly open to parties entering into contract to agree that in case of breach of contract only a fixed sum of money shall be paid by way of compensation, There is neither any thing in conduct of respondents nor ,-in evidence of parties to show that respondents have ever given up their right to sue for specific performance. There was no force in plea that specific performance .may be refused under S. 22 or 24 of Specific Relief Act, 1877- Money is no compensation in contracts for sale of immovable property. Explanation ofS. 12 is quite clear on point. Corollary was that it could be specifically enforced and promisor could not insist for payment of damages or pecuniary compensation. A court of equity is in general annxious to treat penalty as being merely a mode of securing due performance of act contracted to be done and not as a sum of money really intended to be done.-P.L.J.1998 Lah. 1596 = PLD 1998 Lah. 11.

 

Perpetual injunction, grant of – – Contract of supply of goods was revoked by the appellant – To enforce the contract, the respondent filed suit for declaration and permanent injunction — Where the respondent was simply purchasing goods from the appellants on the payment of the price and against the delivery of the goods, such dealing between the parties was squarely covered by S.5 of Sale of Goods Act, 1930 – If the appellants, even for malafide reasons, had refused to sell the goods to the respondent, at the best, the respondent could sue the appellant for damages, but no specific enforcement of the agreement could be obtained under the decree of the Court, as per the provisions of S.56(i) of Specific Relief Act, 1877 read with explanation to S.12 of the Act. 2002 CLC 77

 

Plaintiff examined only one attesting witness‑‑‑Trial Court dismissed the suit on the ground that agreement to sell had not been proved in accordance with Art.79 of Qanun‑e-­Shahadat, 1984‑‑‑Agreement to sell having been attested by two witnesses and executed after promulgation of Qanun‑e‑Shahadat, 1984 ought to have been proved in accordance with Art.79 thereof‑‑‑Evidence on record consisted of only one attesting witnesses‑‑‑Payment of earnest money had not been proved‑ Evidence produced by plaintiff did not meet the requirement of Art.79 of Qanun‑e‑Shahadat, 1984. 2002 S C M R 1089

 

Preference of registered document over oral agreement – – Possession of suit-land was handed over to plaintiff in execution of oral agreement of sale – Subsequently the owner of the suit-land executed registered sale-deed in favour of defendants on the basis of another agreement of sale in their favour – Suit filed by the plaintiff was dismissed by the Trial court but appellate court allowed the appeal and decreed the suit in favour of the plaintiff – Judgment and decree passed by the Appellate court were maintained by High court in exercise of revisional jurisdiction – Plea raised by the defendants was that the agreement of  sale in favour of the plaintiff was unregistered document which could not be termed as agreement of sale, while the agreement in their favour was a registered document, therefore, the document in favour of the plaintiff could not be enforced – Validity – Appellate court and high court, after taking into consideration the terms of the document in favour of the plaintiff could not be enforced – Validity – Appellate court and high court, after taking into consideration the terms of the document in favour of the plaintiff and the evidence produced by the parties, recorded a finding of fact that it was an agreement of sale, therefore, the same could be enforced as such to seek specific performance thereof – Vendee under unregistered document or agreement was delivered possession, the principle that registered document would taken preference over unregistered document would  not be applicable in view of S. 48 of Registration Act, 1908 – Defendants, in their written statement had admitted that possession of the land had been delivered to the plaintiff under the agreement of sale, therefore, no benefit could be clamed under S. 48 of Registration Act, 1908, on the ground that agreement in favour of the defendants was a registered document – Execution of sale-deed in favour of defendants by the owner, after execution of the agreement of sale in favour of the plaintiff, could not in any manner detract from the rights of the plaintiff under law as holder of prior agreement of sale vis-à-vis the sale-deed specific performance thereof – Findings of fact recorded by the Appellate court and affirmed by the High court had not been shown to be suffering from any legal infirmity such as misreading or non-reading of any material piece of evidence – Appeal was dismissed. 2004 S C M R 530

 

Price of plot agreed to between parties. Subsequent increase in price. Effect. Enhancement of price of plot in dispute on part of Authority was a unilateral exercise to which plaintiffs had protested. Once price of plot in dispute had been agreed between parties, merely by efflux of time that could not be varied by Authority and made basis for cancellation of plot upon failure of plaintiffs to pay enhanced price.-P.L.J.1999 Kar. 687 = 1999 CLC 1076.

 

Prima facie case – Non-delivery of possession – Onus to prove – Plaintiffs asserted that the defendants did not deliver possession of the suit land to them as per terms and conditions of the agreement to sell— Effect – Onus was on the defendants to explain before the Trail Court to justify their failure to deliver possession of the suit land but in order to determine existence of prima facie case, the factum of non-delivery of possession of the suit land could be considered in favour of the plaintiffs. PLD 2003 Lah. 17

 

Proof of execution‑‑Agreement of sale allegedly entered by respondent with appellant‑‑Appellant examining attesting witnesses to prove execution of agreement but Courts below requiring production of expert evidence‑‑Nothing available on record to show that evidence of attesting witnesses on point was insufficient‑‑Finding of Courts below requiring production of expert evidence for proof of execution of agreement, held, was not justified‑‑No requirement of law existed to prove execution of a document by production of expert evidence‑‑Findings of Courts below set aside and case remanded for disposal in accordance with law. 1987 M L D 2065   Plaintiffs claimed to have paid entire sale consideration, they, however, admitted in evidence that they were not given possession of land in question ‑‑‑ Such fact was highly improbable that plaintiffs having paid full consideration would not have insisted for delivery of possession of land in question; plaintiffs also failed to give any reason for non ­delivery of possession of land in question, when they had allegedly paid full sale consideration ‑‑‑ Such circumstances strongly reacted to plaintiff’s claim that defendant had agreed to sell land in question under alleged agreement to sell and receipt of sale price ‑‑‑ In absence of very special circumstances, plaintiffs having paid full consideration, would have been put in possession of land in question‑‑­Findings recorded by Courts below were, thus, based on conjectures and surmises. P L D 1996 Supreme Court 256

 

Re­assessment of evidence‑‑‑First Appellate Court being Judge of law and facts was required to re‑assess evidence and if inferences or conclusions drawn by Trial Court were far from reality then those were to be discarded straightaway‑‑‑Where, however, two opinions about a fact, issue or controversy was possible then conclusion reached by Trial Court was normally to be preferred‑‑‑In plaintiff’s case, conclusions of High Court were, however, quite opposite and he was, thus, not entitled to indulgence of Court. 1996 M L D 269

 

Refusal to enforce :– It is well settled principle of Law that court may refuse to enforce specific performance of an agreement of sale of immovable property, if purchaser is found to be in default or he is unwilling to perform his part of contract.  P.L.J.1996 SC 1777 = 1996 SCMR 137.

 

Registration of document – Power of attorney was executed in the year 1983 and the same was registered in the year 1985 –  Attorney on the basis of such power entered into an agreement to sell immovable property owned by the principals – Principals disowned the agreement on the ground that they had revoked the attorney in year 1996 –  Effect – Registration of the power of attorney might have been a subsequent event and even if it was accepted that it was delayed due to some dispute between the principals and the attorney and the same was subsequently registered. Implying that such dispute had been settled, principals were bound by the act of their attorney – Plaintiff could not be made to suffer on account of the dispute among the principals and the attorney – Suit was decreed in circumstances, 2001 CLC 1930  Noor Muhammad and another v. Muhammad Ishaq and another 2000 MLD 251; Ahmad Khan v. Settlement Commissioner and others 1975 SCMR 64; Abdul Majeed and others v. Muhammad Akram and others 1989 SCMR 1298; Syed Abdul Khader v. Rami Ready and others AIR 1979 SC 553; Board of Intermediate and Secondary Education, Lah.v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; The Chief Settlement Commissioner, Lah.v. Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Ibrahim v. Ibrahim PLD 1965 AJ&K 20; Salma Abbasi v. Ahmed Suleman 1981 CLC 462 and Syed Humayun Zaidi and 4 others v. Mst. Hussain Afroza 1999 SCMR 2718 ref.

 

Relief discretionary :– Grant of decree in specific performance of contract being discretionary, could be refused even if execution of agreement was proved.  P.L.J.1998 Kar. = 867 = 1998 CLC 760.

 

Relief of specific performance, grant of – Considerations by Court stated. PLD 2003 SC 430

 

Res – judicata, – Earlier suit for declaration was rejected by Trial Court and appeal against the Judgment and decree was dismissed by Lower Appellate Court – Suit for specific performance of agreement to sell was filed subsequently – Validity – Bar contemplated under S.11, C.P.C. would not apply to subsequent suit for specific performance of contract and permanent injunction – Dismissal of appeal by the Lower Appellate Court had no bearing on the subsequent owing to distinct cause of action in both the matters – Principle of res – judicata was not applicable in circumstances. PLD 2002 Kar. 333

 

Scriber of a document is as good a witness as somebody else:–  Trial Court decreed plaintiffs suit while Appellate Court dismissed the same on the ground that agreement to sell was not proved in accordance with law. Scriber of a document is as good a witness as somebody else if he had signed document in question as a witness. Scriber having not signed such document as a witness, he was not attesting witness in terms of S. 79, Qanun-e-Shahadat Order, 1984, Petitioner has not proved his case in terms of S. 79 of Qanun-e-Shahadat in as much as be failed to produce two attesting witnesses in terms of S, 79 -of Qanun-e-Shahadat. Petitioner could not take benefit of the fact that respondent had also produced only one attesting witness. Petitioner/ plaintiff has to prove his case independently and could not get benefit of short-coming of respondent/defendant. Findings recorded by Court of competent Jurisdiction could not be interfered with by High Court in exercise of its revisional Jurisdiction unless such finding suffers from Jurisdictional defect, illegality or material irregularity. No such illegality or irregularity having been pointed out in impugned Judgment, revision against the same was not maintainable.-P.L.J.2000 Lah. 2119.

 

Specific performance of agreement with a condition ‘subject to contract’ – – Phrase ‘subject to contract’ is a suspensive condition –  Any document or memorandum agreed to by the parties, subject to such condition does not become binding contract, unless such condition is lifted by a subsequent act of the parties. 2002 CLC 218  The Law of Contract by Cheshire & Fifoot, 10th Edn., p. 186 ref.

 

Specific performance of unsigned agreement – Plaintiff as an estate agent entered into an agreement in respect of the property owned by the defendant for getting the subject property vacated and disposing of the same at bargain price within a period of six months from the date of agreement which period was extendable was not even signed by the plaintiff as well as deforest by the plaintiff was not even signed by the plaintiff as well as defendant—validity – Prima facie such document could not be presumed to be concluded or executed document – No document was produced by the plaintiff to prove that there was any proposal of the nature sought to be enforced – Held such unsigned agreement could not be enforced – Claim of the plaintiff, if at all, under the circumstances could be for recovery of the amount spent by him to get the premises vacated— Plaintiff failed to make out a case concluded or even a negotiated agreement of which specific performance could be claimed— High Court declined to restrain defendants for dealing with their own property in any manner— plaintiff, in the present case, had neither prima facie good case nor balance of convenience was in this favour no he would suffer any irreparable loss – If the plaintiff succeeded in establishing amount of expenses incurred by him, he might recover the same subject to proof — Application was dismissed in circumstances.  PLD 2003 Kar. 57

Specific performance, element of hardship would hardly be valid ground for declining specific performance.  P.L.J.1998 SC 623.

Stamp duty on registration of sale under decree:– Sub-Registrar was not competent to ignore decree of court or to dictate his own terms or to direct parties to pay stamp duty on self inflated rates calculated, on imaginary basis. Valuation table issued by Collector having no legal basis/sanctity, such-Registrar was duty bound to honour decree of court and to register sale deed on terms as certified by court itself. Order requiring respondent to pay additional stamp duty and also to bear liability of additional corporation fee was palpably wrong and without Jurisdiction. Respondent being not liable to pay such amount had right to seek refund/recovery thereof through civil suit. Decree granted by trial court does not suffer from any error of law or misreading of record.  P.L.J.1999 Lah. 171 = 1999 CLC 450 = NLR 1999 Civil 132. Suit for recovery of amount paid towards additional Stamp duty and additional corporation fee. Limitation for filing such suit was governed by Art. 120, Limitation Act 1908. Suit filed within three years of payment of such duty and fee was well within time.  P.L.J.1999 Lah. 171 = 1999 CLC 450 = NLR 1999 Civil 132.

Subsequent vendee – Plaintiff was bound to implead the subsequent vendee in case his name was in his knowledge – Such duty of the plaintiff was not a mere formality or exercise in routine but a dire requirement of the circumstances – All such three parties were supposed to have interacted among themselves with regard to the sale and purchase of one and the same property – Actions and conduct of such persons individually were most likely to give rise to certain facts which were co-related to the actions and conduct of all others – some facts were alleged while others were withheld by all or some of the parties surrounding one pivotal question in the dispute – Principles. PLD 2003 SC 639

Suit for cancellation of power of attorney followed by suit for cancellation of sale-deed– Omission to sue for cancellation of sale-deed in earlier suit for cancellation of power of attorney – Bar contained in O.II, R.2(2), C.P.C. – Applicability – Plaintiff claming to be owner of suit property filed earlier suit after coming to know about use of her bogus power of attorney by defendant to get possession of her property from tenant – Plaintiff at the time of filing earlier suit had no knowledge that defendant had fraudulently conveyed her property to the other defendants – Held, plaintiff had stated facts giving rise to separate causes of action and had filed two separate suits warrant rejection of plaints under any principle of law – Both suits were, thus, maintainable under Ss. 39 & 42 of Specific Relief Act, 1877 – Principles. 2004 M L D 227

Suit for declaration instead of suit for specific performance of agreement – Document relied upon by the plaintiff had two separate aspects and they were Joined together – On one side the document was relied on as promissory note whereas on the other side the same was treated as agreement – Plaintiff filed suit for declaration for the recovery of certain amount on the basis of the document – Validity – Such mis-joinder of claims given in the deed could provide no benefit to plaintiff because portion of the deed qua the agreement the witnesses were necessary and so associated while claim qua the money in the deed witnesses were not necessary but still they were there – Plaintiff in the present case himself had damaged the quality of the deed as promissory note – Second portion of the deed, prima facie, indicated the same to be an agreement to sell, for the executant undertook to sell certain portion of the land – Plaintiff ought to have had brought a suit for specific performance of contract for the portion relating to agreement to sell – Suit for declaration was not maintainable in circumstances, PLD 2002 Pesh. 1

Suit for specific performance of agreement of exchange of property‑‑‑Defendant admitted his signatures on the agreement of exchange sought to be specifically performed but had alleged that said signatures were procured by plaintiffs through fraud and misrepresentation‑‑­Defendant had failed to prove his allegations by any evidence‑‑‑Execution of agreement of exchange of property having been admitted by defendant by affixing of his signatures, not only in his written statement, but also while appearing as witness, such admitted fact needed no proof as per Art. 113 of Qanun‑e­-Shahadat, 1984‑‑‑Defendant having failed to, prove that his signatures on the agreement were procured through fraud and misrepresentation, concurrent judgments of; Courts below arrived at after properly appreciating evidence on record and after applying judicial mind could not be interfered with. 2000 Y L R 2851

Temporary injunction in favour of plaintiff on depositing specified amount in court. In suit for specific performance where possession of properly had been given to plaintiff in pursuance of agreement to sell defendants could not be permitted to interfere with plaintiffs possession. Defendant having attempted to defeat contract through overt act and having partially succeeded in their such attempt, plaintiff who was in possession through agreement to sell were entitled to protect their possession through agency of court by obtaining temporary injunction. Order of .trial court in granting temporary injunction in favour of plaintiffs on condition of their. depositing remaining sale consideration was quite reasonable which did not warrant any interference by High Court.  P.L.J.1996 Pesh. 277 – 1996 MLD 238.

Temporary injunction. Entitlement. Contract between parties was of category of contracts which could not be specifically enforced and fell within the mischief of Cl. of S. 21 of the Specific Relief Act, 1877 and bar of injunction as provided in S. 56 of the Act was attracted. Plaintiffs could not make out prima facie case for grant of temporary injunction pending decision of suit, in so far as third party interest had been created in property in question as per plaintiffs’ own admission and their failure to implead such persons as party in their suit. Balance of convenience, thus,, would not be in favour, of plaintiffs. Plaintiffs having themselves estimated damages/losses suffered by them on account of breach of agreement in the sum of specified amount, no case for temporary injunction was made out. Where relief asked for could be measured in terms of money and plaintiffs themselves having  claimed specified amount as damages in their suit, grant of temporary injunction respecting land in question was not warranted, and, hence, refused.  P.L.J.1998 Kar. 822 = 1998 CLC 441.

Time as essence of contract. Time, no doubt, was essence of contact arrived at-between parties, but as defendant Authority having failed to perform its obligation of providing infrastructure facilities under contract, plaintiffs could not be nonSuited if they failed to perform their obligation under contract due to corresponding failure of defendant Authority to perform its own obligation.  P.L.J.1999 Kar. 687 = 1999 CLC 1076.

Transposition of defendant as plaintiff – Plaintiff made an offer not to press the suit subject to refund of earnest money paid by him – One of the defendants accepted offer and refunded earnest money subject to forfeiture in case he failed to find a suitable buyer for a higher value, within four months – Some defendants (other than that, who refunded earnest money) on their own filed amended plaint transposing themselves as plaintiffs seeking relief of mandatory injunction against defendant having refunded earnest money – Validity –  Entirely new facts had been pleaded in amended plaint, wherein relief was claimed only, against one defendant, who had refunded earnest money – Complexion, character and nature of the suit of specific performance and injunction had been changed to that of mandatory injunction – Right or interest available to original plaintiff/vendee had not been acquired by said defendants – Rather said rights and interest had been assumed and acquired by defendant, who while refunding earnest money to original plaintiff had undertaken to buy suit property either by himself or through his nominee – Defendant by doing so had stepped into the shoes of original plaintiff, thus, Court transposed him as plaintiff being vendee – Such transposition would not change character, complexion or nature of the suit for specific performance – Amended plaint filed by some defendant was rejected in circumstance. In amended plaint, pleadings in suit for specific performance were no more there, instead entirely new facts were pleaded, relief was directed against one defendant only. Complexion, character and nature of the suit for specific performance and injunction had been changed to that of mandatory injunction seeking implementation of orders passed in the suit. Had there been any claim/suit in respect of administration, partition and distribution of the estate of deceased pending inter se the parties, then of course transposition of some of the defendants as plaintiff in the matter could have been possible. There was no order for the transposition of other defendants as plaintiffs. Contention of said other defendants that when Court granted two weeks further time to file amended plaint, in fact it allowed transposition of parties could not be sustained for the reasons, firstly there was no earlier direction of filing amended plaint or order for transposition of parties; secondly even if it was presumed that by granting time to file amended plaint, transposition of parties was allowed, then there was nothing on record, whereby transposed parties were allowed to amend the pleadings to an extent that entire complexion, nature and character of suit was changed. Amended plaint filed by said defendants transposing themselves as plaintiff was rejected. Transposition of parties could be ordered by the Court both on application of any party or suo motu in case where Court was satisfied that any party to a proceedings had stepped into the shoes of another or interest of any party to the proceedings had either been acquired, transferred, assumed by way of assignment, devolution, transfer in any lawful manner only then transposition of such party could be ordered to avoid multiplicity of the proceedings to cut short the litigation provided nature, character and completion of suit was not changed. Defendants had not acquired any right or interest as vendee in the suit property which were available to original plaintiff/vendee. Rights and interest as vendee of the suit property were assumed and acquired by the other defendant who in fact while refunding the earnest money to original plaintiff undertook to buy the subject property either himself or through his nominee. By doing so in fact he had stepped into the shoes of original vendee/plaintiff. If any person was to be transposed, it was the defendant who could be transposed as plaintiff being vendee. By ordering transposition of said defendant as plaintiff, neither the character, complexion nor nature of the suit for specific performance would be changed. Under the circumstances, defendant was ordered to be transposed as plaintiff, name of original plaintiff was struck off and rest of the defendants were to remain defendants. PLD 2002 Kar. 542  Ahmad Zaman Khan, Barrister v. Government of Punjab through Collector, Multan and 2 others 1993 CLC 1327; Yousaf Aziz v. Aqeela Begum PLD 1978 Kar. 205 and Malik Mumtaz Ali v. Pakistan through Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others PLD 1971 Lah.395 ref.

Undue delay on part of one party – – Equity would not assist, where there had been undue delay on the part of one party to contract, and other party had given him reasonable notice that he must complete contract within a definite time. PLD 2003 SC 430

Unregistered agreement –Agreement relied upon by the plaintiffs pertained to immovable property of value of more than Rs. 100 and the same required compulsory registration-Vendor executed general power of attorney in favour of his daughter who, in consequence of that document, executed mutation of the suit-land in favour of her husband – Contention of the plaintiffs was that the agreement was prior in time to the execution of mutation of the suit land – Validity-Where agreement was an unregistered document, same did not create any title in favour of the plaintiffs – Nothing was available on record to restrain the attorney from executing mutation in favour of any person including her husband – Agreement being an unregistered document did not create any title in favour of plaintiffs and the attorney was perfectly within her right to execute the mutation – Both the Courts below had returned their findings in accordance with law and the suit was rightly dismissed. 2001 CLC 1001 Subedar Muhammad Yousuf v. Muhammad Sarwar Khan and others PLD 1955 Lah.521; Pyare Lal and others v. Mt. Kalawati AIR 1949 All. 340 and Official Receiver of Salem v. Chinna Goundan and another AIR 1957 Mad. 630 distinguished. Moosa and others v. Muhammad Yakoob and others PLD 1966 (W.P.) Kar. 376 ref.

When Marginal witness to agreement in question, not supporting agreement to sell. Name of one of witnesses was written on document in question but his thumb-impression was not obtained on the same. Co-vendee ‘in whose favour agreement to sell had allegedly been executed filed his written statement categorically admitting therein that agreement in question, was fictitious and false one. Co-vendee also denied that neither he nor other vendees had paid consideration to vendor lady who was illiterate and that defendants wanted to deprive her other property. Plaintiffs had failed to prove that any illegality or material irregularity was committed by Courts below in exercise of their Jurisdiction in dismissing their claim to specific performance of alleged agreement to sell. Plaintiffs were thus, not entitled to any relief.  P.L.J.1999 Lah. 1624 = 1999 CLC 967.

Whether time was of the essence of contract– Plaintiff was pursuing the matter and was ready and willing to perform his part of contract – Defendant failed to show the plaintiff clear title to the suit property –  Effect –  Defendant had acted malafidely and purposely delayed the process – Had the relevant documents been shown clear to the plaintiff, the conveyance would have been concluded, as such the time given in the agreement could not be taken as essence of the contractSuit was decreed accordingly, 2001 CLC 1029

 

13. Contract of which the subject has partially ceased to exist

 

Notwithstanding anything contained in section 56 of the Contract Act, a contract is not wholly impossible of performance because a portion of its subject-matter, existing at its date, has ceased to exist at the time of the performance.

Illustrations

Punjab Amendment .-Illustration (a) and (b) omitted.

(a) A contracts to sell a house to B for a lakh of rupees. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money.

(b) In consideration of a sum of money payable by B.A. contracts to grant an annuity to B for B’s life. The day after the contract has been made, B is thrown from his horse and killed. B’s representative may be compelled to pay the purchase-money.

Court Decisions

Time was of essence of contract–Appellant entered into agreement to purchase evacuee plot for a lump sum–Respondent got refund of the price of passage for which appellant claimed proportionate decrease an price per Marla–Various documents produced by parties dad not suggest that the passage once sold to respondent was retained either by the Department itself or for someone else–All copies of PTD consistently disclosed that the passage had been given free of cost to respondent, obviously meaning thereby that the title thereto was not taken back from him otherwise the title to passage must have been clearly retained by the department for itself for future disposal–Attempt to apply rate per marla appeared to be a subterfuge under which appellant perhaps purposely worked to cloak his failure to abide by the contract–Nothing could be easily imported in written terms and conditions of a contract–Parties were ad idem and no one-sided interpretation styled later could help the concerned party­-Case was not that of impossibility under which partial performance could be claimed–Impossibility envisaged by the provisions of Ss.12 & 14 of the Specific Relief Act was entirely different like a happening beyond one’s control (vis. major) etc.–Respondent proved on record that time was of the assence of the contract which appellant failed to abide by–Appeal dismissed in circumstances. 1989 M L D 2770

 

14. Specific performance of part of contract where part unperformed is small

 

Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

Illustrations

            (a) A contracts to sell to B a piece of a land consisting of 100 bighas. It turns out that 98 bighas of the land belong to A and the two remaining bighas to a stranger, who refuses to part with them. The two bighas, are not necessary for the use or enjoyment of the 98 bighas, nor so important for such use or enjoyment that the loss of them may not be made good in money. A may be directed at the suit of B to convey to B the 98 bighas, and to make compensation to him for not conveying the two remaining bighas; or B may be directed, at the suit of A, to pay to A, on receiving the conveyance and possession of the land, the stipulated purchase money, less a sum awarded as compensation for the deficiency.

(b) In a contract of the sale and purchase of a house and lands for two lakhs of rupees, it is agreed that pan of the furniture should be taken at a valuation. The Court may direct specific performance of the contract,
notwithstanding the parties are unable to agree to the valuation of the furniture and may either have the furniture valued in the suit and included it in the decree for specific performance, or may confine its decree to the house.

Court Decisions

            Appellant entered into agreement to purchase evacuee plot for a lump sum–Respondent got refund of the price of passage for which appellant claimed proportionate decrease an price per Marla–Various documents produced by parties dad not suggest that the passage once sold to respondent was retained either by the Department itself or for someone else–All copies of PTD consistently disclosed that the passage had been given free of cost to respondent, obviously meaning thereby that the title thereto was not taken back from him otherwise the title to passage must have been clearly retained by the department for itself for future disposal–Attempt to apply rate per marla appeared to be a subterfuge under which appellant perhaps purposely worked to cloak his failure to abide by the contract–Nothing could be easily imported in written terms and conditions of a contract–Parties were ad idem and no one-sided interpretation styled later could help the concerned party­-Case was not that of impossibility under which partial performance could be claimed–Impossibility envisaged by the provisions of Ss.12 & 14 of the Specific Relief Act was entirely different like a happening beyond one’s control (vis. major) etc.–Respondent proved on record that time was of the assence of the contract which appellant failed to abide by–Appeal dismissed in circumstances. 1989 M L D 2770

 

 

15. Specific performance of part of contract where part unperformed is large

 

Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of defendant.

Illustrations

(a) A contracts to sell to B a piece of land consisting of 100 bighas. It turns out that 50 bighas of the land belong to A, and the other 50 bighas to a stranger who refuses to pan with them. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon, and to take the 50 bighas which belong to A waiving all rights to compensation either for the deficiency or for loss sustained by him through A’s neglect, or default, B is entitled to decree directing A to convey those 50 bighas to him on payment of the purchase-money.

(b) A contracts to sell to B an estate with a house and garden for a lakh of rupees. The garden is important for enjoyment of the house. It turns out that A is unable to convey the garden. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon and to take the estate and house without the garden waiving all rights to compensation either for the deficiency ‘or for loss sustained by him through A’s neglect or default, B is entitled to a decree directing A to convey the house to him on payment of the purchase-money.

Court Decisions

Specific performance of part of contract where part unperformed is large:–  Where legal part of agreement can be severed from illegal and void contract, such separated part may be enforced.  Where Specific performance of agreement to sell-consisting of two parts i.e., legal part and illegal part – Trial Court decreed plaintiff’s suit to the extent of legal part – Dismissal of suit as a whole by Appellate Court was not warranted in as much as, legal part of agreement could have been enforced – Judgment and decree of Appellate Court was set aside while that of trial Court decreeing legal part of agreement was restored in circumstances.  P.L.J. 2002 Lah.575

Partial performance of contract – Agreement of sale executed between the parties and power of attorney executed by vendor lady in favour of his attorney showed that whole land in dispute and not a part thereof was to be sold to the vendee – Sale of portion of land by attorney in favour of son of deceased vendee was wholly without lawful authority – Courts below bad rightly concluded that transaction smacked of fraud and mala fides being based on collusion with attorney who had tried to deprive the lady of the land. 2001 MLD 988

Plea of non-payment of sale price having not been pressed in High Court, could not be allowed to be raised before Supreme Court.  P.L.J.1998 SC 623.

 

 

16. Specific performance of independent part of contract

 

When a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.

 

17. Bar in other cases of specific performance of part of contract

 

The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections.

 

 

18. Purchaser’s right against vendor with imperfect title

 

 Where a person contract to sell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the following rights:-

(a) If the vendor lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

(b) Where the concurrence of other persons is necessary to validate the title, and they are bound to convey at the vendor’s or lessor’s request, the purchaser or lessee may compel him to procure such concurrence;

(c) Where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase-money, and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a conveyance from the mortgagee;

(d) Where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with interest thereon, to his costs of the suit, and to lien for such deposit, interest and costs on the interest of the vendor or lessor in the property agreed to be sold or let.

Court Decisions

Agreement to sell executed by and between parties on 13.10.1985, when defendant was not owner of land in question – Defendant acquired title of such land on 27-3-1986 – Defendant was bound to perform agreement in question executed by him – Judgment and decree of Appellate court non-suiting plaintiff was set aside while that of trial court decreeing plaintiff’s suit was restored. PLJ 2004 Pesh. 30

 

19. Power to award compensation in certain cases

 

Any person suing for specific performance of a contract may also ask for compensation for its breach, either in addition to, or substitution for, such performance.

If in any such suit, the Court decides that specific performance ought not be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly.

If in any such suit the Court decides that specific performance ought to be granted but, that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

Compensation awarded under this section may be assessed in such manner as the Court may direct.

Explanation. The circumstances that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section.

Illustrations

OF THE SECOND PARAGRAPH-

A contracts to sell a hundred maunds of rice to B; B brings a suit to compel A to perform the contract or to pay compensation. The Court is of opinion that A has made a valid contract and has broken it, without excuse, to the injury of B, but that specific performance is not the proper remedy. It shall award to B such compensation as it deems just.

OF THE THIRD PARAGRAPH

A contracts with B to sell him a house for Rs. 1,000, the price to be paid and the possession given on the 1st January. 1877. A fails to perform his part of the contract, and B brings his suit for specific performance and compensation. which is decided in his favour on 1st January, 1878. The decree may. besides ordering specific performance, award to B compensation for any loss which he has sustained by A’s refusal.

Of the Explanation

A. a purchaser, sues ff, his vendor, for specific performance of a contract for the sale of a patent. Before the hearing of the suit the patent expires. The Court may award A compensation for the non-performance of the contract, and may, if necessary, amend the plaint for that purpose.

A sues for the specific performance of a resolution passed by the directors of a public company, under which he was entitled to have a certain number of shares allotted to him, and for compensation for the non-performance of the resolution. All the shares had been allotted before the institution of the suit. The Court may under this section, award A compensation for the non-performance.

Court Decisions

Compensation of breach. Person suing performance of contract can also ask for compensation of breach either in addition to or in substitution for such performance. Person seeking alternative relief of compensation in addition to or in substitution of relief of specific performance would not render himself disentitled to grant of specific performance of contract. Non-performance of agreement pertaining to immovable property could not be compensated in terms of money and, therefore, its enforcement could hot be refused unless, extreme hardship was likely to be caused to other side.  P.L.J.1999 Lah. 1354 = PLD 1999 Lah. 193.

            Contract between parties was of category of contracts which could not be specifically enforced and fell within the mischief of Cl. of S. 21 of the Specific Relief Act, 1877 and bar of injunction as provided in S. 56 of the Act was attracted. Plaintiffs could not make out prima facie case for grant of temporary injunction pending decision of suit, in so far as third party interest had been created in property in question as per plaintiffs’ own admission and their failure to implead such persons as party in their suit. Balance of convenience, thus,, would not be in favour, of plaintiffs. Plaintiffs having themselves estimated damages/losses suffered by them on account of breach of agreement in the sum of specified amount, no case for temporary injunction was made out. Where relief asked for could be measured in terms of money and plaintiffs themselves having  claimed specified amount as damages in their suit, grant of temporary injunction respecting land in question was not warranted, and, hence, refused.  P.L.J.1998 Kar. 822 = 1998 CLC 441.

 

20. Liquidation of damages not a bar to specific performance

 

               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.

Illustration

A contracts to grant B an under-lease of property held by A under C, and that he will apply to C for a licence necessary to the validity of the under-lease, and that, if the license is not produced, A will pay B Rs. 10,000. A refuses to apply for the licence and offers to pay 5 the Rs. 10,000. B is nevertheless entitled to have the contract specifically enforced if C consents to give the license.

Court Decisions

If contract provided for a specific amount as damages, its specific performance whether can be granted or not. As far as first consideration to refuse specific performance of contract is concerned, explanation to Section 12 of Specific Relief Act to effect that unless and until contrary is proved, Court shall presume that breach of a contract to transfer immovable property cannot be adequately relieved by compensation io money, escaped notice of learned Courts, provisions of Section 20 of said Act also escaped consideration of learned Courts. Refusal to grant specific performance on ground that agreement provided for penalty is not sustainable.-P.L.J.2000.Lah. 1485.

 

21. Contracts not specifically enforceable

 

The following contracts cannot be specifically enforced:-

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;

(c) a contract the terms of which the Court cannot find with reasonable certainty;

(d) a contract which is in its nature revocable;

(e) a contract made by trustees wither in excess of their powers or in breach of their trust;

(f) a contract made by or on behalf of a corporation or public company created for special purposes, or by the promoters of such company, which is in excess of its power.

(g) A contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;

(h) A contract of which a material part of the subject-matter, supposed by both parties to exist, has before it has been made, ceased to exist.

And, save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract other than an arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

Illustrations

to (a)-

A contracts to sell, and B contracts to buy, a lakh of rupees in the four per cent. loan of the [Central Government];
A contracts to sell, and B contracts to buy, 40 chests of indigo at Rs. 1,000 per chest:

In consideration of certain property having been transferred by A to B, B contracts to open a credit in A’s favour to the extent of Rs. 10,000, and to honour A’s drafts to that amount:

The above contracts cannot be specifically enforced, for in the first and second both A and B, and in the third A, would be reimbursed, by compensation in money.

to (b)-

A contracts to render personal service to B;

A contracts to employ B on personal service;

A, an author, contracts with B, a publisher, to complete a literary work;

B cannot enforce specific performance of these contracts.

A contracts to buy B’s business at the amount of a valuation to be made by two valuers, one to be named by A and the other by B. A and B each name a valuer, but before the valuation is made, A instructs his valuer, not to proceed.
By a charter-party entered into in Chittagong between A, the owner of a ship, and B, the charterer, it is agreed that the ship shall proceed to Karachi, and there load a cargo of rice, and thence proceed to London, freight to be paid, one-third on arrival at Karachi, and two-thirds on delivery of the cargo in London.

A lets land to B and contract to cultivate it in a particular manner for three years next after the date of the lease.
A and B contract, that, in consideration of annual advances to be made by A, B will for three years next after the date of the contract grow particular crops on the land in his possession and deliver them to A when cut and ready for delivery.
A contracts with B that in consideration of Rs. 1,000 to be paid to him by B, he will paint a picture for B. A contracts with B to execute certain work which the Court cannot superintend. A contracts to supply B with all the goods of a certain class which B may require.

The promoters of a company for working mines contract that the company, when formed shall purchase certain mineral property. They take no proper precautions to ascertain the value of such property and in fact agree to pay an extravagant price therefor. They also stipulate that the vendors shall give them a bonus out of the purchase-money. This contract cannot be specifically enforced.

To (c)-

A company existing for the sole purpose of making and working a railway, contract for the purchase of ? piece of land for the purpose of erecting a cotton mill thereon. This contract cannot be specifically enforced.

to (d)-

A contracts to let for twenty-one years to B the right to use such part of a certain railway made b> B’s land, and that B should have a right of running carriages over the whole line on certain terms, and might

A contracts with B to take from B lease of a certain house for a specified term, at a specified rent, ‘if the drawing-room is handsomely decorated,’ even if it is held to have so much certainty that compensation can be recovered for its breach.
A contracts to marry B. The above contracts cannot be specifically enforced.

to (e)-

A the owner of a refreshment-room, contracts with B to give him accommodation there for the sale of his goods and to furnish him with the necessary appliances. A refused to perform his contract. The ease is one for compensation and not for specific performance, the amount and nature of the accommodation and appliances being undefined.

to (f)-

A and B contract to become partners in a certain business, the contract not specifying the duration of the proposed partnership. This contract cannot be specifically performed, for, if it were so performed, either A or B might at once dissolve the partnership.

to (g)-

A is a trustee of land with power to lease it for seven years. He enters into a contract with B to grant a lease of the land for seven years, with a covenant to renew the lease at the expiry of the term. This contract cannot be specifically enforced.

The Directors of a company have power to sell the concern with the sanction of a general meeting of the shareholders.
They contract to sell it without any such sanction. This contract cannot be specifically enforced.

Two trustees, A and B, empowered to sell trust property worth a lakh of rupees, contract to sell it to C for Rs. 30,000. The contract is so disadvantageous as to be a breach of trust. C cannot enforce its specific performance.
The promoters of a company for working mines contract that the company, when formed shall purchase certain mineral property. They take no proper precautions to ascertain the value of such property and in fact agree to pay an extravagant price therefor. They also stipulate that the vendors shall give them a bonus out of the purchase-money. This contract cannot be specifically enforced.

to (f)-

A company existing for the sole purpose of making and working a railway, contract for the purchase of a piece of land for the purpose of erecting a cotton mill thereon. This contract cannot be specifically enforced.

to (g)-

            A contracts to let for twenty-one years to B the right to use such part of a certain railway made by A as was upon 5’s land, and that B should have a right of running carriages over the whole line on certain terms, and might require A to supply the necessary engine-power, and that A should during the term keep the whole railway in good repair. Specific performance of this contract must be refused to B.

to (h)-

A contracts to pay an annuity to B for the lives of C and D. It turns out that. at the date of the contract. C, though supposed by A and B to be alive was dead. The contract cannot be specifically performed.

Court Decisions

Scope – Such relief is discretionary and when the contract is abandoned, the same cannot be enforced at the instance of plaintiffs. 2002 CLC 218

Ashrafi (Pvt.) Limited and another v. Kar. Transport Syndicate Limited, Kar. and another PLD 1973 Note 119 at p. 184 and NarainJan and others v. Muhammad Yunus AIR 1932 Lah.265 ref.

Contracted goods were neither of extraordinary special kind nor are commodity which was not available in market so as to entitle plaintiffs to decree of specific performance. Plaintiffs in equity would be entitled to proportionate compensation for quantity of goods not supplied to them at least at that rate at which they purchased entire quantity of goods. Court while calculating price at that rate worked out specified amount to which plaintiffs were found entitled and they were awarded decree in terms of such specified amount.-P.L.J.1997 Kar. 940 = 1997 CLC. 88.

Enforcement of contractual obligation. High Court had dismissed Petitioners Constitutional petition for- enforcement of same. Validity. Discretionary relief had been claimed by petitioner after considerable delay and thus, suffered from laches. Contract in question having been terminated allegedly by respondents, appellants would have claimed damages under normal law which was available to him and could have been claimed. Agreement itself contained clause for Arbitration on whereby difference of opinion between parties or any dispute arising out of impugned agreement could be referred to arbitrator for settlement instead of bringing legal action. Efficacious and effective remedy being available to appellate in form of Arbitration on civil action under normal law, Constitutional Jurisdiction in such situation could not be invoked-Judgment passed by Single Judge of High Court did not warrant interference in circumstances.  P.L.J.1999 Lah. 126 = 1999 CLC 26.

Specific performance of an agreement which cast an obligation on the respondents to appoint the appellant or his nominee against a class IV post and this process shall continue till such time the school is in existence. Agreement seems to be in perpetuity for all times to come, generation after -generation. Such an agreement which has cast a duty of performance for a period longer than three years cannot therefore specifically be enforced.  P.L.J.1997 SC 494 = 1997 SCMR 855 = NLR 1997 Civil 335.

Suit for specific performance of contract—Plaintiff relying on admission of one of the defendants in his counter-affidavit and claiming entitlement to decree on basis of such admission—Admission of one defendant could not bind other defendants–­Admission made by one of defendants being a mistake of fact was rectified in subsequent affidavit—Property in question belonged to defendant other than the one who had admitted factum of payment of price—Dispute raised in suit by plaintiff required proof for verdict in his favour—Admission referred to, could not be treated as conclusive proof of the matter allegedly admitted by one of the defendants and such admission did not constitute estoppel by itself. 1991 M L D 2697

‘Subject to contract’ – ‘No contract was executed between the parties – Plaintiff relied upon a letter which contained terms of oral agreement and the letter was accepted by one of the defendants subject to contract – Plaintiff failed to show any act of the parties which would have the effect of lifting the suspensive condition –  ValiditySuch agreement was not enforceable in law as the agreement had a condition of ‘subject to contract’ – Where parties had expressed their intention of not entering into legal obligations without a formal contract, such term must be respected in order to allow the freedom to the parties to negotiate a deal without the fear of being trapped into obligations which they never intended to create, no binding contract, in the present case, existed between the parties – Plaintiff, thus failed to establish a prima facie case in its favour for the grant of injunction – Application for grant of injunction was dismissed accordingly. 2002 CLC 218

 Major (Retd.) Ahmed Khan Bhatti v. Mst. Masooda Fatmi PLD 1981 Kar. 398; Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202; Harichand Mancharam v. Govind Luxman Gokhale AIR 1923 PC 47; Branca v. Cobarro 1947(2) All ER 101; Damon C.I.A. Naviera SA v. Hapag-Lloyd International SA v. The Blankenstein, The Bartenstein, The Birkenstein (1985) 1 All ER 475; Ateni Maritime Corporation v. Great Marine Limited (1990) 2 Lloyd’s Rep. 250; Perry v. Sufflelds Limited (1916) 2 Ch. D 187; Voest Alpine Intertrading v. Chevron International Oil Co, (1987) 2 Lloyd’s Rep. 547; Gloval Container Lines Ltd. v. State Black Sea Shipping Co. Amber Seatrade S.A. and Clifton Navigation S.A. (1999) 1 Llyod’s Rep. 127; Foley v. Classique Coaches Limited (1934) 2 KB 1; Sweet and Maxwell Ltd. v. Universal News Services Ltd. (1964) 3 All ER 30; Finchbourne Ltd. v. Rodrigues (1976) 3 All ER 581; Beer v. Bowden (1981) 1 All ER 1070; Greater London Council v. Connolly (1970) 1 All ER 870; Tiverton Estates Limited v. Wear-well Limited (1974)1 All ER 209; Cohen v Nessdale Limited (1981) 3 All ER 118; Attorney-General and another v. Humphreys Estate (Queen’s Gardens) Limited (1987) LRC 9 (Comm.) 567; Courtney & Fairbarin Limited v. Tolaini Bros. (Hotels) Limited (1975) 1 All ER 716; Ghulam Nabi and others v. Muhammad Yaqub and others PLD 1983 SC 344; David J. Hennessey v. Clara Woolworth (US SC) 128 US 500; State of Texas v. State of New Mexico (US SC) 96 L.Ed.2d. 105; Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431; House Building Finance Corporation v. Shahinshah Human Cooperative House Building Society and others 1992 SCMR 19; Mst. Zeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382; Shajar Ali Hoti v. Esmail Sobani 1987 CLC 2307; Aboo Noor Muhammad v. General Iron and Steel Works Limited PLD 1973 Kar. 234 and Halsbury’s Laws of England, Vol. 9, 4th Edn. ref.

 

 

22. Discretion as to decreeing specific performance

 

The jurisdiction to decree specific performance is 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 following are cases in which the Court may properly exercise a discretion not to decree specific performance:-

I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there be no fraud or misrepresentation on the plaintiff’s part.

Illustrations

(a) A. a tenant for life of certain property, assigns his interest therein to B., C. contracts to buy, and B contracts to sell, that interest. Before the contract is completed. A receives a mortal injury, from the effects of which he dies the day after the contract is executed. If B and C were equally ignorant or equally aware of the fact, B is entitled to specific performance of the contract. If B knew the fact, and C did not, specific performance of the contract should be refused to B.

(b) A contracts to sell to B the interest of C in certain stock-in-trade. It is stipulated that the sale shall stand good, even though it should turn out that C’s interest is worth nothing. In fact, the value of C’s interest depends on the result of certain partnership accounts, on which he is heavily in dcln to his partners. This indebtedness is known to A, but not to B. Specific performance of the contract should be refused to A.

(c) A contracts to sell. and B contracts to buy. certain land. To protect the land from floods, it is necessary for us owner to maintain an expensive embankment. B does not know of this circumstance, and A conceals it from him. Specific performance of the contract should be refused to A.

(d) A’s property is put up to auction. B requests C, A’s attorney, to bid for him. C does this inadvertently and in good faith. The persons present seeing the vendor’s attorney bidding, think that he is a mere puffer and cease to compete. The lot is knocked down to B at a low price. Specific performance of the contract should he refused to B.

II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.

Illustrations

[(e) omitted by Order IV of 1983.]

(f) A and B, trustees join their beneficiary, C. in a contract to sell the trust estate to D, and personally agree to exonerate the estate from heavy encumbrances to which it is subject. The purchase-money is not nearly enough to discharge those encumbrances, though at (he date of the contract, the vendors believed it to be sufficient. Specific performance of the contract should be refused to D.

(g) A, the owner of an estate, contracts to sell it to B. and stipulates that he. A, shall not be obliged to define its boundary. The estate really comprises a valuable properly, not known to either to be a part of it. Specific performance of the contract should be refused to B, unless he waives his claim to the unknown property.

(h) A contracts with B to sell him certain land, and to make a road to it from a certain railway station, it is found afterwards (hat A cannot make the road without exposing himself to litigation. Specific performance of the pan of the contract relating to the road should be refused to B. even though it may be held that he is entitled to specific performance of the rest with compensation for loss of the road.

(i) A. lessee of mines, contracts, with B, his lessor, that at any time during the continuance of the lease. B may give notice of his desire to take the machinery and plant used in and about the mines, and that he shall have the articles specified in his notice delivered to him at a valuation on the expiry of the lease. Such a contract might be most injuries to the lessee’s business, and specific performance of it should be refused to B.

(j) A contracts to buy certain land from B. The contract is silent as to access to the land. No right of way to it can be shown to exist. Specific performance of the contract should be refused to B.

(k) A contracts with B to buy from B’s manufactory and not elsewhere all the goods of a certain class used by A in his trade. The Court cannot compel B to supply the goods; but if he does not supply them. A may be ruined, unless he is allowed to buy them elsewhere. Specific performance of the contract should be refused to B.
The following is a case in which the Court may properly exercise a discretion to decree specific performance.

III. Where the plaintiff had done substantial acts or suffered losses in consequence of a contract capable of specific performance.

Illustration

A sells land to a Railway company, who contract to execute certain works for his convenience. The company take the land and use it for their railway. Specific performance of the contract to execute the works should be decreed in favour of A.

Court Decisions

Discretion of court to decree suit for specific performance of contract. How to exercise. Rational behind provision of section. Jurisdiction to decree specific performance is discretionary, and court is not bound to grant such relief merely because it is lawful to do so, but discretion of court is not arbitrary but sound and reasonable, guided by Judicial principles and capable of correction by court of appeal. It is further provided in S. 22 of Specific Relief Act that where performance of contract would involve some hardships on defendant, which he did not foresee, whereas his non-performance would involve no such hardship on plaintiff, court would be exercising discretion properly by refusing to order decree for specific performance.  P.L.J.1996 Kar. 756 = 1995 CLC 1323.

Specific performance of agreement rests in judicial discretion, exercised according to the principles of equity and with reference to the facts of the case – Such right should never be granted unless the terms of the agreement sought to be enforced are clearly proved, or where it is left in doubt whether the party against whom the relief is asked in fact made such agreement 2002 CLC 218

Colson v. Thompson (US SC) 4L. ed 253 and William a. Carr v. Samuel H. Duval (US SC) 10 L. ed. 361 ref.

Seller in part performance of agreement handed over vacant and peaceful possession of property and documents of title to purchaser upon execution of agreement–No other consequence except only 10% of total sale consideration provided in agreement in event of breach–Time mentioned in agreement, for its performance, was not essence of contract–Delay simpliciter, either on the part of seller or purchaser, held, was not of much consequence in the absence of prejudice to either party–Court could not, therefore, refuse specific performance of agreement unless exceptional circumstances were shown to exist which had caused serious prejudice to seller on account of delay which could not be compensated except by refusing specific performance. 1984 CLC 3462.

Discretion of contract to grant specific performance. Discretion of a court to grant specific performance must be exercised an sound Judicial principles and not in arbitrary manner. Court is bound to grant such relief merely because it is lawful. Court may decline to exercise of granting specific performance of a contract, namely, (i) where circumstances under which contract is made are much, as to give plaintiff an unfair advantage over defendant, though there may not be fraud or misrepresentation on plaintiff’s part and (ii) where performance of contract would involve some hardship on defendant which he did not fore see whereas its non-performance would involve such hardship on plaintiff. Court may properly exercise discretion to decree specific performance where plaintiff had done substantial acts or suffered losses in consequence of a contract capable of specific performance. A party in breach of commitment cannot seek discretion of court in his favour as it would amount to providing a premium on his on wrong. Plaintiff, in law and equity has made out a strong case for specific performance of contract. He has approached the court with clean hands and has always been ready and willing to perform his part of contract. Suit decreed with costs.  P.L.J.1996 Kar. 1072 = 1996 MLD 322.

As such relief is discretionary and when the contract is abandoned, the same cannot be enforced at the instance of plaintiffs. 2002 CLC 218

Ashrafi (Pvt.) Limited and another v. Kar. Transport Syndicate Limited, Kar. and another PLD 1973 Note 119 at p. 184 and NarainJan and others v. Muhammad Yunus AIR 1932 Lah.265 ref.

Time specified in decree for balance ‘sale price. The relief of specific performance u/S. 22 being discretionary in nature, cannot be allowed, if one does not act with promptness and prove with his conduct of bona fide to perform obligation in terms of agreement. The learned trial court would in law, warn pre-hand while passing the decree for specific performance that non-payment of the balance sale price, will ipso facto result in rescission of the contract and dismissal of suit and while doing so, it did not commit any error of law.  P.L.J.1998 Lah. 434 = 1998 CLC 55 = NLR 1998 Civil 103.

Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.  P.L.J.1996 Kar. 703 = 1996 MLD 322.

Entitlement of plaintiff to specific performance. Alleged power of attorney’ executed by vendor in favour of vendee was got registered at a place where-neither land in question was situated nor party resided or worked for gain. Scribe of document had stated in Court that he did not know vendor and he was unable to give even most rudimentary description, of vendor. Provisions of S, 22 Specific Relief Act, 1877, stipulates that Jurisdiction to decree specific performance of contract was discretionary. Court was not expected to decree specific performance where circumstances in which contract was made were such as to give plaintiff unfair advantage over vendor, even though there was no fraud or misrepresentation on plaintiffs part. Plaintiff was thus not entitled to relief of specific performance. Judgment and decree passed by trial Court was set aside and plaintiffs suit was dismissed in circumstances.  P.L.J.1999 Lah. 1770.

 

23. Who may obtain specific performance

 

Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by-

(a) any party thereto;

(b) the representative-in-interest, or the principal, of any party thereto: Provided that, where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative-in-interest or his principal shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed;

(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;

(d) where the contract has been entered into be a tenant for life in due exercise of a power, the remainder man;

(e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor-in-title and the reversioner is entitled to the benefit of such covenant;

(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach;

(g) when a public company has entered into a contract and subsequently becomes amalgamated with another public company, the new company which arise out of the amalgamation;

(h) when the promoters of a public company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company.

Court Decisions

Specific performance of agreement to sell:– Such suit was decreed on the basis of the pleadings of the parties without attending to specific questions and important aspects of the case and without going into the controversial questions of facts required to be proved and decided on the basis of evidence – Neither the specific issues were framed on important mixed questions of law and fact nor the parties produced the evidence essential for decision of such questions o without proper decision of which, there could be no effective adjudication of the dispute between the parties – Supreme Court, while pointing out the important issues and aspects of the case to be noticed, remanded the case to the Trial Court to enable the parties to produce further evidence on all issues including the additional issues to be framed by the Trial Court on the questions raised by the Supreme court. PLD 2003 SC 594

 

24. Personal bars to the relief

 

Specific performance of a contract cannot be enforced in favour of a person-

(a) Who could not recover compensation for its breach;

(b) Who has become incapable of performing, or violates, any essential term of the contract that on his part remains to be performed;

(c) Who has already chosen his remedy and obtained satisfaction for the alleged breach of contract; or

(d) Who, previously to the contract, had notice that a settlement of the subject-matter thereof (though not found on any valuable consideration) had been made and was then in force.

Illustrations .

to clause (a)

A, in the character of agent for B, enters into an agreement with C to buy C’s house. A is in reality acting not as agent for B but on his own account. A cannot enforce specific performance of this contract.

to clause (b)

A contracts to sell B a house and to become a tenant thereof for a term of 14 years from the date of the sale at a specified yearly rent. A becomes insolvent. Neither he nor his assignee can enforce specific performance of the contract.

A contracts to sell B a house and garden in which there are ornamental trees, a material element in the value of the property as a residence. A without B’s consent fells the trees. A cannot enforce specific performance of the contract.

A, holding land under a contract with B for a lease/commits waste, or treats the land in an unhusband like manner.
A cannot enforce specific performance of the contract.

A contracts to let, and. B contracts to take, an unfinished house, B contracting to finish the house and the lease to contain covenants on the part of A to keep the house in repair. B finishes the house in a very defective manner, he cannot enforce the contract specifically though A and B may sue each other for compensation for breach of it.

to clause (c)

A contracts to let, and B contracts to take a house for a specified term at a specified rent. B refuses to perform the contract. A thereupon sues for, and obtains, compensation for the breach. A cannot obtain specific performance of the contract.

Court Decisions

Incapability of plaintiff to perform his part of contract:–Whether plaintiff could enforce and seek specific performance of contract. Involvement of plaintiff is to the extent of Rs. 25,000/Only. Plaintiff has neither done any substantial act, nor has disclosed to have suffered any losses in consequence of contract. Failure in depositing sale consideration is indicative of. defendants incapacity of performing essential terms of contract that on his part remained to be performed. His failure also demonstrates want of bonafide on his part, despite having agreed to deposit balance sale consideration while matter was in appeal. Plaintiff is debarred from seeking specific performance of contract.-P.L.J.1996 Kar. 756 = 1995 CLC 1323.

 

25. Contracts to sell property by one who has no title or who is a voluntary settler

 

A contract for the sale or letting of property, whether movable or immovable, cannot be specifically enforced in favour of a vendor or lessor-

(a) who, knowing himself not to have any title to the property, has contracted to sell or let the same;

(b) who, though he entered into the contract believing that he had a good title to the property, cannot, at the time fixed by the parties or by the Court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt;

(c) who, previous to entering into the contract, has made a settlement (though not founded on any valuable consideration) of the subject-matter of the contract.

Illustrations

(a) A, without C’s authority, contracts to sell to B an estate which A knows to belong to C. A cannot enforce specific performance of this contract, even though C is willing to confirm it.

(b) A bequeaths his land to trustees, declaring that they may sell it with the consent in writing of B. B gives general prospective assent in writing to any sale which the trustees may make. The trustees then enter into a contract with C to sell him the land. C refuses to carry out the contract: The trustees cannot specifically enforce this contract, as, in the absence of B’s consent to the particular sale to C. the title which they can give C is, as the law stands, not free from reasonable doubt.

(c) A, being in possession of certain land, contracts to sell it to Z. On inquiry in tarns out (hat A claims the land as heir of B, who left the country several years before, and is generally believed to be dead, but of whose death there is no sufficient proof. A cannot compel Z specifically to perform the contract.

(d) A out of natural love and affection makes a settlement of certain property on his brothers and their issue, and afterwards enters into a contract to sell the property to stranger. A cannot enforce specific performance of this contract so as to override the settlement, and thus prejudice the interest of the persons claiming under it.

Court Decisions

Principles.– Plaintiff was bound to implead the subsequent vendee in case his name was in his knowledge – Such duty of the plaintiff was not a mere formality or exercise in routine but a dire requirement of the circumstances – All such three parties were supposed to have interacted among themselves with regard to the sale and purchase of one and the same property – Actions and conduct of such persons individually were most likely to give rise to certain facts which were co-related to the actions and conduct of all others – some facts were alleged while others were withheld by all or some of the parties surrounding one pivotal question in the dispute – PLD 2003 SC 639

 

26. Non-enforcement except with variation

 

Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases (namely):-

(a) where by fraud or mistake of fact the contract of which performance is sought is in terms different from that which the defendant supposed it to be when he entered into it;

(b) where by fraud, mistake of fact, or surprise the defendant entered into the contract under a reasonable misapprehension as to its effect as between himself and the plaintiff;

(c) where the defendant, knowing the terms of the contract and understanding its effect, has entered into it relying upon some misrepresentation by the plaintiff, or upon some stipulation on the plaintiff’s part, which adds to the contract, but which he refuses to fulfill;

(d) where the object of the parties was to produce a certain legal result, which the contract as framed is not calculated to produce;

(e) where the parties have subsequently to the execution of the contract; contracted to vary it.

Illustrations

(a) A. B and C, sign a writing by which they purport to contract each to enter into a bond to D for Rs. 1.000. In a suit by D. to make A. B and C separately liable, each to the extent of Rs. 1.000 they prove that the word ‘each’ was inserted by mistake; that the intention was that they should give a joint bond for Rs. 1.000. D can obtain the performance sought only with the variation thus set up.

(b) A sues B to compel specific performance of a contract in writing to buy a dwelling house. B proves that he assumed that the contract included an adjoining yard. and the contract was so framed as to leave it doubtful whether the yard was so included or not. The Court will refuse the contract, except with the variation set up by B.

(c) A contracts in writing to let to B a wharf, together with a strip of A’s land delineated in a map. Before signing the contract, B proposed orally that he should be at liberty to substitute for the strip mentioned in the contract another strip of A’s land of the same dimensions, and to this A expressly assented. B then signed the written contract. A cannot obtain specific performance of the written contract, except with the variation set up by B.

(d) A and B enter into negotiations for the purpose of securing land for B for his life with remainder to his issue. They execute a contract, the terms of which are found to confer an absolute ownership on B. The contract so framed cannot he specifically enforced.

(e) A contracts in writing to let a house to B, for the certain term, at the rent of Rs. 100 per month, putting it first into tenable repair. The house turns out to be not worth repairing; so with B’s consent A pulls it down and erects a new house in its place B contracting orally to pay him at Rs. 120 per mensem. B then sues to enforce specific performance of the contract in writing, He cannot enforce it except with the variation made by the subsequent oral contract.

 

27. Relief against parties and persons claiming under them by subsequent title

 

Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a public company has entered into a contract and subsequently becomes amalgamated with another public company, the new company which arises out of the amalgamation;

(e) when the promoters of a public company have, before its incorporation, entered into a contract, the company: provided that the company has ratified and adopted the contract and the contract is warranted by the terms of the incorporation.

Illustrations to clause (b)

A contracts to convey certain land to B by a particular day. A dies intestate before that day without having conveyed the land. B may compel A’s heir or other representatives-in-interest to perform the contract specifically.

A contracts to sell certain land to B for Rs. 5,000. A afterwards conveys the land for Rs. 6,000 to C, who has notice of the original contract. B may enforce specific performance of the contract as against C.

A contracts to sell land to B for Rs. 5,000. B takes possession of the land. Afterwards A sells it to C, for Rs. 6,000. C makes no inquiry of B relating to his interest in the land. B’s possession is sufficient to effect C with notice of his interest and he may enforce specific performance of the contract against C.

A contracts, in consideration of Rs. 1,000 to bequeath certain of his lands to B. Immediately after the contract A dies intestate, and C takes out administration to his estate. B may enforce specific performance of the contract against C;

A contracts to sell certain land to B. Before the completion of the contract, A becomes a lunatic and C is appointed his committee. B may specifically enforce the contract against C.

to clause (c)

A, the tenant for life of an estate, with remainder to B, in due exercise of a power conferred by the settlement under which he is tenant for life, contracts to sell the estate to C, who has notice of the settlement. Before the sale is completed A dies. C may enforce specific performance of the contract against B.

A and B are joint tenants of land, his undivided moiety of which either may alienate in his life-time but which, subject to that right, devolves on the survivor. A contracts to sell his moiety to C and dies. C may enforce specific performance of the contract against B.

Court Decisions

Bona fide purchaser. What requirements a subsequent vendee must prove in order to succeed on ground. Determination of. It would appear that in order to succeed on this issue, subsequent vendees must establish, apart from payment of value, that.

-They acted in good faith; 

-They had no notice of the original contract, and .

-In the above two aspects, they took reasonable care.

In order to prove above requirements, it would not be enough to say that mere denial in this behalf by subsequent vendees would be enough to discharge onus. Even if it be assumed that absence of notice could be affirmatively established by denial and relevant negative evidence, other requirements will have to be established by positive material. It would, be for the subsequent vendees to show that they act in good faith and with reasonable care. It cannot be said that a mere “denial” in this behalf would be enough to prove something positive in nature of reasonable case and good faith.  P.L.J.2000 Lah. 1485.

Whether respondent was a transferee for value paid in good faith and without notice of original contract. Trial court had held that according to appellant’s own admission in cross-examination, respondent  had no knowledge of agreement prior to purchase of suit plot by him. Factum that lesser consideration was shown in sale deed would not make above provision of Act inapplicable. This fact would not show that respondent had ‘knowledge of agreement at time of purchasing suit plot or that he had “purchased plot without valuable consideration.  P.L.J.1994 SC 350 = PLD 1994 SC 674 = 1994 PSC 798.

Suit for specific performance of agreement to sell property– Vendor entered into agreement to sell with plaintiff and also executed a registered power of attorney in his favour authorising him to sell land – Vendor later on sold land in favour of vendees – Plaintiff filed suit, which was contested by subsequent vendees claiming to be bona fide transferees for consideration and without notice of plaintiff’s rights – Both deeds had been executed on the same date – Subsequent vendees could at most in exercise of due diligence make a probe either into Revenue Record or Registration Office – Property in Revenue Record was still in the name of vendor – Registered deed, if scrutinized, would not have provided any opportunity to subsequent vendees to be alert as same was a simple general power of attorney in favour of plaintiff – Real document to put subsequent vendees on alert was agreement to sell, which had never been registered – Had the Parties executed only one document and all contents of both documents been every occasion for subsequent vendees to have become alert of rights of plaintiff-agent – Registered power of attorney was silent that principal had allowed agent-plaintiff to get property transferred in his own name – Subsequent vendees in such circumstances, despite exercise of due diligence, could not have known or supposed to have known about existence of any agreement to sell between original vendor and plaintiff – Subsequent vendees were, thus, bona fide purchasers for consideration and without notice within contemplation of S. 27 of Specific Relief Act, 1877 – No decree for specific performance could be granted in favour of plaintiff. PLD 2003 SC 494

Suit decreed by trial Court, set aside in appeal. Whether Judgment rendered by Addl. District Judge was no Judgment in eye of law. Suit was for specific performance. It was pleaded by plaintiff that vendor proceeded to sell plot to defendant No. 2 during subsistence of agreement to sell in his favour while defendant No. 2 inspite of notice of agreement purchased same, therefore, he had prayed for setting aside of sale deed. Appellate Court did not advert to legal question as to whether appellant was purchaser for consideration without notice of previous agreement to sell or not? District Judge accepted appeal on sole ground that he would prefer registered sale deed over mere agreement to sell. Sale deed could not be preferred in view of provisions of Section 27of Specific Relief Act. It is clear from Judgment of Addl. District Judge that he even did not go through Judgment of Trial Court and precedents referred to by him otherwise it was not possible to record findings. He has failed to decide appeal by speaking Judgment. He has neither referred to evidence nor arguments nor issues in clear violation of provisions of Order XLI and XX C.P.C.. Learned Addl. District Judge has neither noted points argued before him by parties nor disposal of issues with reference to evidence. None of issues framed by trial court was given up by either of parties, therefore, he was under obligation to decide all .issues. Judgement rendered by Addl. District Judge is not adjudication in eye of law. Impugned Judgment/decree would be deemed pending on file of District Judge who shall decide afresh in accordance with law.  P.L.J.1998 Lah. 1062 = 1999 CLC 62.

Transfer of property by ostensible owner. When a person ostensibly being owner transfer property for consideration and such transfer is questioned on the ground that transferor had no legal power to vacate same, transferee may be exempted from its consequences, provided, he establishes that he has taken reasonable care to ascertain power of transferor and has acted in good faith. This is known as “caveat emptor” rule and requires transferee, apart from acting in good faith, to take all reasonable care to apprise himself of any defect in transferor’s title or clog on his power to effect transfer. On the other 4and Section 27-B of Specific Relief Act, 1877 contemplates that equity of specific performance may not be enforced against a person who had, subsequently, purchased property and paid his money in good faith and without notice of original contract. Duty to ascertain as contemplated by S. 41 of Transfer of Property Act, 1882, is not stipulated in Specific Relief Act, 1877. Burden on transferee under Specific Relief Act, 1877 is less onerous and specific performance against him can be refused if it is shown that he acted in good faith and was not aware of pre-existing equity in favour of other person.  P.L.J.1999 Kar. 633 = 1999 CLC 296.

Relief by way of cancellation of sale-deed not sought by petitioner-Both Courts below had not suited plaintiff on ground that he had not sought relief by way of cancellation of sale-deed in respect of property in question, which had been got registered in favour of subsequent vendee (respondent) -Such findings being in derogation of S. 27of Specific Relief Act 1877, were not maintainable, PLD 2003 Lah.49

 

27-A. Specific performance in case of part performance of contract to lease

 

Subject to the provisions of this Chapter where a contract to lease immovable property is made in writing signed by the parties thereto or on their behalf, either party may, notwithstanding that the contract, though required to be registered has not been registered, sue the other for specific performance of the contract if.-

(a) where specific performance is claimed by the lessor, he has delivered possession of the property to the lessee in part performance of the contract; and

(b) where specific performance is claimed by the lessee, he has in part performance of the contract, taken possession of the property, or, being already in possession, continues in possession in part performance of the contract, and has done some act in furtherance of the contract:

Provided that nothing in this section shall effect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

This section applied to contracts to lease executed after the first day of April, 1930.

Court Secisions

Transferee of suit property in good faith:– defendant who all along projected his case on the basis of registered sale-deed in respect of suit property, had clamed that he was the transferee of suit property in good faith without notice of previous agreement of sale property in good faith without notice of previous agreement of sale allegedly executed earlier in favour of plaintiff on the basis of which plaintiff had founded his case – Specific performance of contract could be enforced under S. 27(b), Specific Relief Act, 1877 against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who had paid money in good faith and without notice of original contract – Specific performance could not be enforced against defendant it he demonstrated that he was a transferee in good faith without  notice of the original contract, Specific performance could not be enforced against defendant if he demonstrated that he was a transferee in god faith without notice of the original contract, allegedly executed in favour of plaintiff earlier – Burden to prove such fact, heavily lay on the defendant. 2004 M L D 251

 

28. What parties cannot be compelled to perform

 

Specific performance of a contract cannot be enforced against a party thereto in any of the following cases:-

(a) if the consideration to be received by him is so grossly inadequate, with reference to the state of things existing at the date of the contract, as to be either by itself or coupled with other circumstances evidence of fraud or undue advantage taken by the plaintiff;

(b) if his assent was obtained by the misrepresentation (whether willful or innocent), concealment, circumvention or unfair practices, of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled;

(c) if his assent was given under the influence of mistake of fact, misapprehension or surprise: Provided that, when the contract provides for compensation in case of mistake, compensation may be made for a mistake within the scope of such provision, and the contract may be specifically enforced in other respects if proper to be so enforced.

Illustrations to clause (c)

A, one of two executors, in the erroneous belief that he had the authority of his co-executor enters into an agreement for the sale to B of the testator’s property. B cannot insist on the sale being completed.

A directs an auctioneer to sell certain land: A afterwards revokes the auctioneer’s authority as to 20 bighas of this land, but the auctioneer inadvertently sells the whole to B, who has no notice of the revocation. B cannot enforce specific performance of the agreement.

 

29. Bar of suit for breach after dismissal

 

The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff’s right to sue for compensation for the breach of such contract or part, as the case may be.

Court Decisions

Appellants having purchased property in dispute from respondents 5 to 16 during pendency of suit have stepped into their shoes and agreement for sale in favour of plaintiffs/respondents 1 to 4 can be specifically enforced as against them in terms of Section 29of Act which ordains that not only parties to agreement but also their successors are bound by it. Only exception in this behalf is that of a bonafide purchaser for value without notice of existing agreement, which is not available to appellants. Appellants being successors of respondents 1 to 4, are bound, to convey property to respondents/plaintiffs in specific performance of agreement which binds them also.  P.L.J.1995 Lah. 468 = PLD 1995 Lah. 255.

 

30. Application of preceding sections to awards and testamentary directions to execute settlements

 

The provisions of this Chapter as to contracts shall, mutates mutandis, apply to awards and to directions in a will or codicil to execute a particular settlement.

 

31. When instrument may be rectified

 

When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative-in-interest, may institute a suit to have the instrument rectified; and if the Court find it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the Court may in its discretion rectify the instruments so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

 

32. Presumption as to intent of parties

 

For the purpose of rectifying a contract in writing, the Court must be satisfied that all the parties thereto intended to make an equitable and conscientious agreement.

 

33. Principles of rectification

 

In rectifying a written instrument, the Court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be.

 

34. Specific enforcement of rectified contract

 

A contract in writing may be first rectified and then, if the plaintiff has so prayed in his plaint and the Court thinks fit, specifically enforced.

Illustration

A contracts in writing to pay his attorney. B, a fixed sum in lieu of cost. The contract contains mistakes as to the name and rights of the client, which if construed strictly, would exclude B from all rights under it. B is entitled, if the Court thinks fn. to have it rectified, and to an order for payment of the sum. as if at the time of its execution it had expressed the intention of the parties.

 

35. When rescission may be adjudged

 

Any person interested in a contract in writing, may sue to have it rescinded, and such rescission may be adjudged by the Court in any of the following cases, namely:-

(a) where the contract is voidable or terminable by the plaintiff;

(b) where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;

(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase-money or other sums which the Court has ordered him to pay.

When the purchaser or lessee is in possession of the subject-matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any, received by him as such possessor.

In the same case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether as the justice of the case may require.

Illustrations

to clause (a)—

A sells a field to B. There is right of way over the field of which A has direct personal knowledge, but which he conceals from B. B is entitled to have the contract rescinded.

to clause (b)-

A, an attorney, induces his client, B, a Hindu widow to transfer property to him for the purpose of defrauding B’s creditor. Here the parties are not equally in fault, and B is entitled to have the instrument of transfer rescinded.

Court Decisions

Decreed subject to condition that purchase price shall be deposited in court within a specific period. Court has power to extend time or not. Where trial court has decreed suit for specific performance of contract subject to condition that purchase price shall, be deposited in court within a specific time and also ordered that if that money is not put in within that time, suit shall stand dismissed, court has no power to extend time as in such a case; that decree by court is final and self-operative . and in case of default of payment of purchase price; mandate of court tantamounts to rescission of contract. In such a case recourse to sections 148 and 151 CPC will not be permissible. Court will not allow plea for extention of time if it finds that it will occasion a wrong to other side. Further more, in order to succeed in an action for specific performance, plaintiff led to show that he had been willing and ready to perform his part of contract.-P.L.J. 1997Lah. 896 = PLD 1997 Lah. 177.

Suit for specific performance of agreement to sell immovable property – court while passing decree in such suit fixed time for deposit of sale price and provided consequences of dismissal of suit in case of failure to comply with the decree – Extension of such time – Powers of Court – Scope – Such decree was not preliminary, but to all intents and purposes was final in nature – court had no jurisdiction to extend the time under S. 148, C.P.C., on principle of becoming functus officio – Such rule was not absolute, but subject to certain exceptions including situations beyond control of the decree-holder to comply with decree or the act of court which impeded compliance thereof – When judgment and decree was corrected, then time provided in original decree for such deposit would start from the time, when the correction was allowed – Principles and exceptions illustrated. PLD 2004 Lah. 103

 

36. Rescission for mistake

 

Rescission of a contract, in writing cannot to be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as it the contract had not been made.

 

37. Alternative prayer for rescission in suit for specific performance

 

A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the Court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly.

 

 

38. Court may require party rescinding to do equity

 

On adjudging the rescission of a contract, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may required.

 

39. When cancellation may be ordered

 

Any person against whom a written instrument is void or void able, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court, may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
If the instrument has been registered under the Indian Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books and fact of its cancellation.

Illustrations

(a) o A, the owner of a ship, by fraudulently representing her to be sea worthy, induces B, an underwriter, to insure her. B may obtain the cancellation of the policy.

(b) A conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land and produces -a forged instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation of the forged instrument.

(c) A, representing that the tenants on his land were all at will, sells it to B, and conveys to him by an instrument, dated the 1st January, 1877. Soon after that day, A fraudulently grants to C a ‘lease of part of the lands, dated the 1st October, 1876, and procures the lease to be registered under the Registration Act. B may obtain the cancellation of this lease.

(d) A agrees to sell and deliver a ship to B, to be paid for by B’s acceptance of four bills of exchange, for sums amounting to Rs. 30,000 to be drawn by A on B. The bills are drawn and accepted, but the ship is not delivered according to the agreement. A sues B on one of the bills. B may obtain the cancellation of all the bills.

Court Decisions

Cancellation of gift deed:– Donor (when he was alive) appeared as witness and denied execution of gift deed – Trial Court dismissed the suit, but appellate Court decreed the same — No evidence was available on record regarding intention of donor to declare gift – deed did not show as to why donor in presence of his wife and son had made gift in favour of the defendants – Defendants had neither rendered any service to donor nor had such close relations with donor for which preference could be given to them donor his wife and son – Defendants had failed to prove that donor had appeared before Court to prove its execution – Gift deed contained general words that possession had been delivered to defendants, when in fact they were already in possession as tenants of donor – Gift deed, in such a situation, should have mentioned that defendants already retaining possession as tenants would now retain the same as owners – Such fact proved that possession in reality had not been transferred to defendants on basis of gift deed, rather they were retaining possession as tenants of donor – Appellate Court had rightly set aside gift deed in circumstances. PLD 2003 Azad J&K 25

Suit for cancellation of registered gift deed in respect of land in question, in favour of one daughter by donor while leaving out his sole son and other daughters‑‑‑Donor’s son being in possession, seeking cancellation of such gift deed, by denying factum of gift and claiming gift deed to be a fabricated transaction‑‑‑Plaintiffs suit was dismissed by trial Court but decreed by Appellate .Court‑‑‑Validity‑‑‑Donor was old and aged person and illiterate‑‑‑Burden to prove execution of gift deed by him and its valid registration at his instance lay upon donee who did not appear in witness box to depose about voluntary execution of gift deed by her father and its registration at his instance‑‑‑Neither stamp vendor nor scribe of gift deed were produced in evidence‑‑‑None from the village where land in question, was situated and donor resided was associated with execution and registration of gift deed ‑‑‑Lambardar of the village where land was situated was also excluded from the transaction in question‑‑‑Attesting witnesses of gift deed were from a far‑off village‑‑­Appellate Court had disbelived their testimony on proper scan of evidence‑‑­No other relation of donor had accompanied him at the time of execution and registration of alleged gift‑‑‑No good reason was shown for donor to prefer one daughter to his sole son and three other daughters‑‑‑Transaction in question, was against ordinary human conduct ‑‑‑Plaintiff was .in possession of land in question, during lifetime of his father and even after his death‑‑‑In case of denial of execution defendant (daughter) who had to prove voluntary nature of transaction had failed to prove that same was voluntary and its execution and registration was at the instance of donor‑‑‑Gift in question was, thus, not binding on plaintiff in circumstances. 1995 C L C 7

Respondent’s plea was that parties had agreed to execute lease agreement, but appellant in connivance with petition‑writer and marginal witnesses got it executed as agreement to sell ‑‑‑Respondent also filed suit for cancellation of agreement to sell being based on fraud and ineffective on his rights‑‑‑Both the suits were consolidated‑‑‑Trial Court decreed appellant’s suit and dismissed respondent’s suit holding that appellant had proved by examining one marginal witness and scribe of agreement that it was executed as agreement to sell‑‑‑Respondent’s appeal was dismissed by Appellate Court, but his revision petition was accepted by High Court‑‑‑‑Respondent had neither denied execution of agreement nor appellant’s possession over suit‑land nor had claimed relief for getting its possession from appellant in suit for cancellation of agreement‑‑­Neither any jurisdictional defect nor non‑reading and misreading of evidence could be pointed out in judgments/decrees passed by Trial Court and Appellate Court‑‑‑High Court had interfered with such concurrent findings without indicating misreading or non‑reading of evidence or the same being in any way in violation of law‑‑‑High Court had granted relief to respondent on the ground not raised either in written statement or during trial‑‑‑ S. C. accepted appeals with costs and set aside judgment of High Court. as a result of which judgments/decrees of Appellate Court were restored. P L D 2002  S. C. 293

Suit had been filed for cancellation of sale deed and possession but there was no prayer clause to the effect of cancellation of sale-deed. It would not be appropriate however, not to grant relief of cancellation of sale-deed and possession thereof, merely on the ground that plaintiff, had not paid Court-fee. Plaintiffs would be required to pay Court fee, if any, on such relief at the time of execution of decree. Trial Court had rightly rejected contention of defendants as to maintainability of suit on the ground that mother of minors had not filed affidavit in respect of minors. Finding of Trial Court was Just and proper in holding that such being simple irregularities plaintiffs could not be non-suited on such grounds.  P.L.J.2000 Kar. 3.

Suit for cancellation of power of attorney and sale‑deed‑‑‑Defendant on the basis of power of attorney allegedly executed by’ one of the brothers of plaintiff, had executed sale‑deed in respect of property of plaintiff and her brothers in favour of his sons‑‑‑Plaintiff being sister of alleged executant of power of attorney had stated on oath that she or her relatives having not heard of him for more than ten years before filing of the suit, he would be deemed to be dead and he being dead person how could he appoint defendant as his attorney‑‑‑Burden was on defendant to prove that executant of power of attorney in his favour was alive and that both power of attorney or sale‑deed were valid documents‑‑‑Defendant failed to discharge the burden by whatever evidence‑‑‑Suit was rightly decreed by the Trial Court. 2001 M L D 725

Suit for cancellation of power of attorney followed by suit for cancellation of sale-deed:– Omission to sue for cancellation of sale-deed in earlier suit for cancellation of power of attorney – Bar contained in O.II, R.2(2), C.P.C. – Applicability – Plaintiff claming to be owner of suit property filed earlier suit after coming to know about use of her bogus power of attorney by defendant to get possession of her property from tenant – Plaintiff at the time of filing earlier suit had no knowledge that defendant had fraudulently conveyed her property to the other defendants – Held, plaintiff had stated facts giving rise to separate causes of action and had filed two separate suits warrant rejection of plaints under any principle of law – Both suits were, thus, maintainable under Ss. 39 & 42 of Specific Relief Act, 1877 – Principles. 2004 M L D 227

Suit by tenant dispossessed from shop by force – Defendant (purchaser) Later on got himself impleaded as party and produced sale-deed in his favour and possession note showing handing over possession of shop by tenant – Tenant denied execution of any document or handing over possession of ship to any of the defendants, and further prayed for cancellation of documents being fraudulent – Contention ot defendants was that on account of additional reliefs clamied through amended plaint, the suit had seized to be one under S. 9 of Specific Relief Act, 1877 – Validity – Cause of grievance in such suit was execution of alleged document of handing over vacant possession of shop by tenant to landlord – Tenant had challenged such document as a fraudulent one – Such document pertained to valuable rights of possession of tenant – Suit challenging such document on ground of fraud instituted by tenant was maintainable. Sale of property by defendant-owner – Plaintiff would not be entitled to object to such sale – Suit challenging validity of such sale and transfer of property would not be maintainable.  PLD 2003 Kar. 436

Court Fee:– Not necessary by implication for the plaintiff in suit for declaration to ask for consequential relief as contemplated under S.39 of the Specific Relief Act, 1877–Where the plaintiff has not asked for such consequential relief it cannot be held that he should have made a prayer for such a relief but if a suit is framed as one for declaration that certain document is void and is to be treated as one under S.39 of the Specific Relief Act, 1877, and partly under S.42 of the Specific Relief Act, 1877, in such a case the plaintiff is liable to pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870. 2002 C L C 1549

            Suit for declaration and cancellation of agreement to sell was filed by the plaintiff alleging the same to be void ab initio on the ground that it was not executed by her but was an act of fraud–Defendant filed application under O. VII, R.11, C.P.C. for the rejection of plaint as the plaintiff failed to fix ad valorem court-fee– Application was dismissed by the Trial Court but the Appellate Court allowed the same and directed the plaintiff to affix the court-fee under S.7(iv)of the Court Fees Act, 1870—held, Where the plaintiff had asked for declaration under S.42 and for cancellation of the document under S.39 of the Specific Relief Act, 1877, she was liable to pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870-­Appellate Court had, rightly exercised its Jurisdiction vested in it under the law and directed the plaintiff to affix the requisite court-fees. 2002 C L C 1549

Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 distinguished.

Abdul Harrild alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca 357; Mst. Bhagan through L.Rs. v. Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 AJ&K 55; Mst. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 AJ&K 66 and Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 ref.

            Sale of Joint Hindu property:– Hindu Law defines ingredients of legal necessity on basis of which Karta can dispose of Joint family property while S. 244, Hindu law makes purchaser of Joint family property liable to prove that either there was legal necessity in fact and that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of necessity. Appellate Court erred in law in holding that plaintiffs were under burden to prove that defendant, had not fulfilled conditions of legal necessity before purchase of property in question, as contemplated by S. 243 of Hindu Law. Such finding was contrary to law as provisions of S. 244 of Hindu law are very clear whereunder purchaser was under burden to prove that he was satisfied with requirements of S. 243 of Hindu law before entering into transaction with Manager/Karta of Joint family property. Appellate Courts view that burden shifted to plaintiffs was not in accordance with law. Trial Court on basis of material on record had rightly concluded that defendants had failed to discharge their burden to satisfy requirements of Sections 243 and 244 of Hindu law. Appellate Court thus, mis-applied, mis-interpreted law and based its Judgment on misreading of evidence, therefore, Judgment of Appellate Court was set aside, while Judgment and decree was restored and in addition to that relief, sale deed was cancelled in terms of S. 39, Specific Relief Act, 1877 subject to payment of required Court fee within specified time.  P.L.J.2000 Kar. 3.

 

40. What instrument may be partially cancelled

 

Where an instrument is evidence of different rights or different obligations, the Court may, in a proper case, cancel it in part and allow it to stand for the residue.

Illustration

A draws a bill on B who endorses it to C, by whom it appears to be endorsed to D who endorsed it to E. C’s endorsement is forged. C is entitled to have such endorsement cancelled leaving the bill to stand in other respects.

 

 

41. Power to require party for whom instrument is cancelled to make compensation

 

On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require.

 

42. Discretion of Court as to declaration of status or right

 

 Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation. A trustee of property is a ‘person interested to deny’ a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.

Illustrations

(a) A is lawfully in possession of certain land. The inhabitants of a neighbouring village claim a right of way across the land. A may sue for a declaration that they are not entitled to the right so claimed.

(b) A bequeaths his property to B, C and D. ‘to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children.’ No such children are in existence. In a suit against
A’s executor, the Court may declare whether B, C and 0 look the property absolutely, or only for their lives and it may also declare the interests of the children before their rights are vested.

(c) A covenants that if he should at any time he entitled to property exceeding one lakh of rupees, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The Court may make the declaration.

(d) A alienates to B property in which A has merely a life interest. The alienation is invalid as against C. who is entitled as reversioner. The Court may, in a suit by C against A and B, declare that C is so entitled.

(e) The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her may. in a suit against the alienee obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow’s lifetime.

(f) A Hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the properly on her death without a son may, in a suit against the adopted son, obtain a declaration that the adoption was invalid.

(g) A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the properly

(h) A bequeaths property to B for his life, with remainder to B’s wife and her children, if any. by B. but it B dies without any wife or children, to C. B has a putative wife. D, and children, but C denies that B and D were ever lawfully married. D and her children may. in B’s lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B.

Court Decisions

Suit for declaration‑‑‑Plaintiff challenged registered sale‑deed executed by their deceased father in favour of defendants on the ground of same being forged‑‑‑Trial Court decreed the suit‑‑­Appellate Court .set aside the decree and dismissed the suit, which judgment was upheld by High Court in revision‑‑Registered sale‑deed had been executed on 17‑8‑1963, whereas plaintiffs had filed suit on 17‑3‑1984‑‑‑Such inaction on the part of plaintiffs for about 20 years went a long way to attach sanctity to sale‑deed‑‑‑Possession of respondents over disputed land amply supported the authenticity of registered sale‑deed, thus, non‑examination of its attesting witnesses was not fatal‑‑‑Plaintiffs’ witness had admitted that thumb‑impression on sale‑deed appeared to be that of their father‑‑‑Plaintiffs could not make mileage from report of finger expert as thumb‑impression of their father affixed on disputed power of attorney had been sent to finger expert for comparison with his thumb‑impression on sale-­deed‑‑‑No concrete instance of misreading or non‑reading of evidence had been highlighted by plaintiffs.2002 S C M R 1391 Suit for declaration, permanent injunction and possession by predecessors-in-interest of a lady asserting therein that their mother was the owner in possession of the suit-land; that she had never appointed anybody as here attorney and the alleged general power of attorney was invalid and fictitious and mutation entered in respect of sale of the suit property were not only illegal but mutations were attested by fraud as managed by the then Patwari – Neither the scribe of the document of general power of attorney nor the Notary Public alleged to have attested the same was examined to prove its genuineness – Very foundations of this case was baseless and merited to fall down – When the sale mutations in dispute were made, consolidation proceedings were pending, alienation and mutation, in absence of registered sale-deed and also without obtaining necessary permission of the Consolidation officer were illegal – Record showed that no such general power of attorney was produced in the evidence before the Trial Court as such same being non-existent, the question of its validity would not arise at all – An document that purported to create right, title or interest in immovable property required compulsory registration – If the General power of attorney was in existence, the same should have been compulsorily registered and mere attestation of general power-of-attorney by the Notary Public was not sufficient to meet the requirement of law. PLD 2003 SC 159 Suit for declaration assailing the genuineness of general power of attorney in favour of defendant on the basis of which, he had further alienated the suit-land to the other defendants – Land in question was owned by the plaintiffs and allegedly defendant had sold the plots of said land in favour of other defendants on the basis of a forged and fabricated document of power of attorney – Plaintiffs, in order to discharge the burden about the forgery of the document, had examined themselves and had denied that they had ever executed the document or appeared before the sub-Registrar or Commission for registration – Defendants, in order to prove the document to be genuine had examined Moharrer from the office of Sub-Registrar, who had simply brought the record of the sub-Registrar to depose that it had been registered in the office – Local Commissioner, allegedly appointed by the Sub-Registrar, in his cross-examination had stated that he did not know the executant of the power of attorney personally; that he was taken to the office of a property dealer, where some men and women were present and he reposing confidence in the person who was allegedly made attorney through that document and considering those persons to be genuine, got the thumb-impressions of the executants on the power of attorney; that he did not see the identity cards of all the executants, because all of them did not possess those cards, only three had the identity cards that he did not go to thumb-impressions – Statement of the local Commissioner thus had not proved that the power of attorney had been executed by the plaintiffs and their signatures and thumb-impressions were affixed in the genuine proceedings by the local commission – None of the marginal witnesses had been produced, who had identified the plaintiffs at the time of proceedings before the local commission— Defendants had not even moved any application before the Court for seeking comparison of the thumb-impressions or signatures of the plaintiffs through any Handwriting Expert/Fingerprint Expert, thus on the basis of such evidence, the view of the Appellate court that the power of attorney had been duly proved was the result of sheer misreading and non-reading of the record, resultantly the same was set aside by the High Court in revision. PLD 2003 Lah. 576 Plaintiffs claim to ownership thereof, was resisted by defendants who claimed ownership of the same. Trial Court decreed plaintiffs suit while Appellate Court set aside Judgment and decree of trial Court. Validity. Rev. record showed status of properties and rights of individual, thereon. If disputed property was ever acquired by Irrigation Department as per its claim why it was not incorporated in Rev. record and if it was so in corporated why relevant record was not produced in Court. Analysis of evidence produced by plaintiffs inspired confidence, which would lead to irritable conclusion that plaintiffs were owners of land in question. Demarcation proceedings were carried out three times in presence of senior officers of Irrigation Department, whereto no objection was raised by representatives of Irrigation Department to demarcation proceedings, rather they agreed to correctness of those proceedings and put there signatures under that report which was duly incorporated in Roznarricha Waqiati. Rev. record clearly proved claim of petitioners over land in, question. Appellate Court had failed to appreciation evidence placed on record in it true perspective, thus, its Judgment suffered from material illegality and was un­sustainable.-P.L.J.1999 Lah. 1340 = 1999 MLD 2612 = 1999 CLC 603.

Contention that order of trial court that Section 172 of Land Rev. Act created no bar to filing of suit to challenge action of Rev. authorities, was not “maintainable. Function of Rev. Authorities is to prepare Rev. record in light of evidence with regard to one’s title or interest, but civil rights such as claim of petitioner being daughter of Said Khan deceased, have to be determine by civil court. Section 42 of Specific Relief Act confers a right upon an aggrieved person to seek declaration from civil court with regard to his right or title. View of trial court does not suffer from any legal infirmity. First proposition having been found against petitioner, suit is also not barred by principle of constructive res-Judicata.  P.L.J.1994 Pesh. 88 = PLD 1994 Pesh. 249.Dismissal of respondents suit against cancellation of allotment in their, favour by two Courts below. High Court on consideration of material on record decreed respondents, suit. Plot in question, was cancelled from the name of appellant and was allotted in favour of respondent. Appellant had not invoked Jurisdiction of any civil Court to get his title established or for redressal of his grievances but kept on waiting for the result of litigation by respondents, thereby ignoring the fact that he could not derive any benefit, in as much as, he was having no legal status after cancellation of plot in question, from his name. Non-delivering of possession to respondent after allotment, was of no consequence, in as much as, physical handing over of plot in question, was subject to completion of certain formalities which could only be done by concerned functionaries of District Allotment Committee. Lapse of the Department in not handing over possession of plot in question, after completion of formalities could not be equated to that of wilful default. High Court , thus, had rightly decreed respondents suit and same could not be interfered with in exercise of appellant Jurisdiction.  P.L.J.2001 SC 139 =  P.L.J.2001 SC 443.

Averment in plaint to the effect that property in question was Evacuee Trust Property, would by itself divest plaintiff of any interest or right therein. Plaintiff as Notified Officer had very limited scope of Jurisdiction and could not claim to be custodian of all Government lands and properties. Averments in plaint did not show any legal character or right in plaintiff to maintain suit for declaration. Plaintiff, for maintaining any proceedings for declaration in suit must show existence of statute or character conferred by law which was wanting in suit. Plaint was thus, rejected for lack of legal character or status in plaintiff to maintain suit for declaration,  P.L.J.1997 Kar. 861 = 1997 MLD 2444.

Confiscation of property by Nawab of Dir in 1937 by way of punishment and expulsion of predecessors of petitioners of charge of murder. Declaration by Govt. of N.W.F.P. to the effect that disputed property was state property. Admittedly, suit land was situated within limits off Malakand Agency and, therefore, it was neither state property of Dir nor could it be confiscated by Ex-Nawab of Dir as he was devoid of territorial Jurisdiction. It was ridiculous ,to assume that land was situated in District Dir. Learned District Judge was Justified in reversing finding of ‘learned trial Court on crucial issue as to, location of disputed property. High Court was, therefore, right in not interfering with finding on material question.  P.L.J.1997 SC 1403 = 1997 SCMR 1620:

Declaration sought for under S.42 of Specific Relief Act, 1877, must relate to title or to any legal character or to any right as to any propertySaid suit would fall under S.7(iv)of Court Fees Act, 1870, read with Sched. II, Art.17(IIl) of said Act–Where specific relief claimed in a declaratory suit was either surplusage or consequential relief same would flow from original relief of declaration claimed in plaint and suit would thus fall under Sched. II, Art.17(iii) of Court Fees Act, 1870, but if consequential relief was not outcome of original declaratory relief then suit would fall out of ambit of abovesaid provisions of law–Plaintiff in his suit had asked for a declaration to the effect that he was owner in possession of suit land and had prayed for a further relief that gift deed and sale-deed were illegal and ineffective on his right, said further relief would flow from declarationSaid suit would fall under S.7(iv)of Court Fees Act, 1870 read with Sched. II, Art. 17(111) of the said Act. 2000 M L D 1611 Miss Nasim Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J & K 66 ref.

Evidence brought on record clearly proved that petitioners/plaintiffs were in possession of disputed land as tenants at will. Beside referring oral evidence, reference was also made to relevant-Rev.-record-particularly-to,-Jamabdndi,-where petitioners/plaintiffs were recorded as tenants at will in column of tenants as against column No. 3 whereas respondents/defendants have been recorded as owners. Oral evidence brought on record did not support contention of petitioners/plaintiffs that they were actually holding land in question as its owners. Contention that they had purchased property in question for consideration is not borne out from any evidence. On contrary, mutation entered in respect of alleged transaction was later on cancelled when objected to from other side. Petitioners could not point out that there was bona fide transaction of sale and purchase between parties as alleged in plaint. Petition being meritless is accordingly dismissed in limine.  P.L.J.1998 Lah. 894 = 1948 CLC 1423.

Execution of general power of attorney and mutation of sale challenged through suit for declaration as being result of fraud mis-representation, collusiveness, without lawful authority, illegal and ineffective on rights of plaintiffs. Plaintiffs suit .was’dismissed by Trial Court while the same was decreed by Appellate Court. Validity. Execution of power of attorney having been denied by plaintiff, burden to prove the same would shift to defendant who had got benefit out of that document and was beneficiary of the same. Alleged attorney was close relative of beneficiary of alleged sale. Person who had signed receipt of loan as witness had admitted that the same was scribed by his clerk and that no consideration/money was passed in his presence. Scribe of receipt also admitted that no money was passed in his presence. Scribed though admitted to have written receipt of money, yet he had not signed that document. One of two marginal witnesses having not been produced, document in question, would not be deemed to have been proved in accordance with Arts. 17 and 79 of Qanun-eShahadt Order, 1984. Marginal witnesses of power, of attorney having not been produced execution of power of attorney was not proved. Sale in question, on basis of invalid power of attorney was thus, without lawful authority and mutation of sale on basis thereof, was illegal and void,  P.L.J.2000 Lah. 343 = 2000 MLD 1117.

Whether relief of possession could be given by High Court. Respondent, throughout proceedings, agitated that he was dispossessed from properties during pendency of proceedings and that he should be put back in possession. Appellant was fully aware of claim of respondent, regarding possession of suit properties. Omission to claim possession specifically in suit, was a technical lapse. Learned Judge in Chambers was fully competent to treat application under Section 151 C.P.C. as cross-objections in appeal of appellant. Learned Judge in chambers rightly allowed amendment of plaint adding prayer for possession, but legal implications were not taken into consideration by learned Judge in chambers. As result of amendment, valuation pf suit went beyond Rs. 200,000/- and appeal should have been heard by Division Bench. Appeal accepted and case remanded to High Court for decision of appeal by Division Bench.-P.L.J.1994 SC 386 = 1994 SCMR 1555 = 1994 PSC 996.

It ..is clear from mutation of redemption of land that appellants have sold their land to respondents and mortgage money was paid by respondents. Findings recorded by trial court, were reversed by first appellate court for valid reasons. Primary relief sought by appellants being of declaration, High Court has discretion to refuse relief in view of clear provisions of Section 42 of Specific Relief Act even if case is proved.  P.L.J.1995 Lak. 172 = 1995MLD 1042.

S. 53-A. of Transfer of Property Art, 1882 makes it clear that it applied only to transfer of an immovable property made by a writing signed by the vendor himself or on his behalf. Disputed land was already in possession of petitioner-defendant No. 2 being a mortgagee. Defendants did not deny contents of relevant para No. 5 in this regard in written statement. Petitioners-defendants raised no objection about form of suit Or same being barred by law in written statement. So, suit of plaintiff is not hit by provisions ofS. 53-A of Transfer of Property Act or S. 42 of Specific Relief Act.-P.L.J.1998 Lah. 939 = 1998 CLC 1104.

­Defendants who were cousins of plaintiff and were cultivating his land, on basis of forged and fabricated agreement to sell and power of attorney in collusion with another defendant got land owned by plaintiff mutated in their favour in absence of plaintiff‑‑‑Plaintiff in his suit denied execution of agreement of sale in favour of defendants and execution of power of attorney in favour of other defendant and sought declaration that said documents be declared to be illegal and void and that plaintiff was owner of land in dispute and had not sold land to the defendants‑‑‑Suit was decreed by Trial Court, but on filing appeal Appellate Court dismissed the suit‑‑‑Validity‑‑‑Power of attorney on basis of which land of plaintiff was got mutated in names of defendants and execution of which was denied by plaintiff, was not even produced on record and no explanation for the omission, was given by defendants‑‑‑Defendants had claimed that power of attorney being registered one was a public document and its certified copy was admissible in evidence‑‑Contention was repelled because under Art.85(5) of Qanun‑e-­Shahadat, 1984 only such registered document could be a public document, execution whereof was not disputed, whereas plaintiff had totally denied the execution of the power of attorney‑‑‑No evidence whatsoever had been led by defendants to prove proceedings of mutation‑‑‑Appellate Court below was not justified to hold that since mutation stood incorporated in Revenue Record same enjoyed a presumption of correctness and need not be proved‑‑­If mutation was incorporated in Revenue Record, defendants claiming benefit thereunder were not absolved of their obligation to prove the same as a fact‑‑‑Judgment and decree passed by Appellate Court being not based on any evidence and having been passed in. exercise of jurisdiction not vesting in it, could not sustain‑‑‑High Court set aside judgment of Appellate Court and restored the judgment and decree of Trial Court in circumstances. 2001 C L C 155 Muhammad Ibrahim v. Mst. Basri and others 1988 SCMR 96; Muhammad and others v. Sardul PLD 1965 Lah. (W.P.) 472; Abdul Majeed and 6 others v. M. Subhan and 2 others 1999 SCMR 1245 and Allah Dino and 2 others v. Muhammad Umar and others 1974 SCMR 411 ref.

Plaintiff challenged inheritance mutation of deceased claiming 3/4th share therefrom‑‑‑Trial Court decreed the suit‑‑‑Appellate Court dismissed the suit, which judgment was upheld by High Court in revision‑‑‑Validity‑‑‑Evidence adduced by plaintiff to prove that he was a collateral of deceased was too deficient to establish his alleged relationship‑‑‑Both witnesses examined by plaintiff were strangers as the former about two years ago had taken up residence in the village, where disputed land was situated, whereas the latter’s village was situated at a distance of 10/15 miles from plaintiff’s‑ village‑‑‑Plaintiff had not examined any person having special knowledge about his relationship with deceased‑‑­Pedigree‑table neither linked the plaintiff in any manner with deceased nor same had been proved in accordance with law‑‑‑Plaintiff’s claim had not been established on record‑‑‑Impugned judgment did not warrant interference‑‑­ S. C. dismissed the petition and refused to grant leave to appeal. 2002 S C M R 1355

Plaintiff challenged registered sale‑deed executed by their deceased father in favour of defendants on the ground of same being forged‑‑‑Trial Court decreed the suit‑‑­Appellate Court .set aside the decree and dismissed the suit, which judgment was upheld by High Court in revision‑‑‑Validity‑‑‑Registered sale‑deed had been executed on 17‑8‑1963, whereas plaintiffs had filed suit on 17‑3‑1984‑‑‑Such inaction on the part of plaintiffs for about 20 years went a long way to attach sanctity to sale‑deed‑‑‑Possession of respondents over disputed land amply supported the authenticity of registered sale‑deed, thus, non‑examination of its attesting witnesses was not fatal‑‑‑Plaintiffs’ witness had admitted that thumb‑impression on sale‑deed appeared to be that of their father‑‑‑Plaintiffs could not make mileage from report of finger expert as thumb‑impression of their father affixed on disputed power of attorney had been sent to finger expert for comparison with his thumb‑impression on sale-­deed‑‑‑No concrete instance of misreading or non‑reading of evidence had been highlighted by plaintiffs‑‑‑Supreme Court dismissed the petition and refused to grant leave to appeal. 2002 S C M R 1391

 Revisional jurisdiction, exercise of‑‑‑Suit was resisted by defendant on grounds that identity of suit property was in dispute and that defendant had claimed title in respect of suit property by virtue of inheritance and on basis .of will‑‑­Validity‑‑‑Full description of suit. property had been given and identity of property had not been disputed by defendant either before Trial Court or before Appellate Court‑‑‑Such controversy could not be urged at revisional stage‑‑‑Defendant could not produce any document to prove his title in suit property by virtue of inheritance or on basis; of alleged Will‑‑‑Plaintiff on the contrary had succeeded in establishing her title in property resting on registered instrument‑‑‑Presumption as to genuineness, .correctness and authenticity of registered documents under Arts.85(5) & 129of Qanun‑e‑Shahadat, 1984 was not dispelled by defendant and oral assertion was not sufficient to rebut registered documents produced by plaintiff in proof of her title in respect of suit property‑‑‑Suit for possession and declaration was rightly decreed by Trial Court and Appellate Court‑‑‑Concurrent findings of Courts below could not be interfered with in revisional jurisdiction of High Court when no illegality was pointed out in concurrent finding of Courts below. 2002 M L D 1397 Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD 281 and Syed Akhtar Hussain Zaidi’s case 1988 SCMR 753 ref.

Plaintiffs claimed ownership of land in question on the basis of agreement of sale executed by predecessor‑in‑interest of defendants in favour of their father claiming that they remained in possession of land as its owners after the death of their father‑‑‑Said agreement of sale had been challenged by defendants after about forty‑two years of its execution‑‑‑Document was written on a stamp paper of rupee one of “Dogra Regime” which contained no prima facie evidence of forgery, but appeared to be perfectly genuine document‑‑‑If a document which was more than thirty years’ old had been produced from proper custody, Court, under Art. 100 of Qanune‑e‑Shahadat, 1984 could presume the same to be genuine‑‑‑Agreement of sale, in circumstances, was rightly held genuine by Courts below. 2001 M L D 493 Tikamdas and another v. Abdul Wali and 7 others PLD 1968 SC 241 and Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others 1999 MLR 824 ref.

Filing of application by Respondents Nos. 1 to 4 after closure of petitioners, evidence for comparison of thumb impressions of petitioner with that of report of patwari on daily dairy & mutation. Rejection order passed by trial court upheld in appeal. Constitutional petition. Onus of issue proving transaction to be bona fide against lady plaintiffs who claimed to be parda Nashin ladies is heavily on petitioner/defendant. If he was of view that those thumb impressions were actually affixed by Respondents/plaintiffs, then he should have moved application much earlier instead of waiting for stage of his evidence. Even otherwise, he has not put any witness so far in witness box to put his own case by calling patwari and Rev. officials, but had relied upon daily diary and sanctioned mutation respectively- Had it been shown that thumb-impressions affixed thereon belonged to plaintiffs/respondents, then question for comparison would have arisen. At this stage, when impression have already been denied from very. beginning, petitioner/defendant cannot be allowed premium over his adversary which would tantamount to creation of evidence instead of examining evidence relied upon in list of reliance. Party cannot be allowed to come up with piece-meal objections at. every stage of case which is yet pending in CJourt of competent Jurisdiction awaiting final decision in accordance with law. Constitutional Jurisdiction in such matters cannot be availed till case is finally decided. All interim orders, if passed to prejudice of any party, would also merge in final Judgment and could be assailed in accordance with law at appropriate stage in competent forum. P.L.J.1999 Lah. 1242.

Petitioner claiming title to land in question, on basis of inheritance. Petitioners suit on such plea was dismissed by Courts below. Evidence produced by petitioner could not establish that he was the son of propositus, the same rather established otherwise. Birth certificates of children of petitioner relating to years 1963, 1966, 1971, 1974, 1979 and 1987 recorded after the death of propositus by three different chowkidars showed parentage of petitioner to be different than that claimed by him. Two Courts below had dismissed petitioner, claim of inheritance on consideration of evidence on record. Petitioner had brought present suit after 24 years of attestation of mutation, thus, his silence for so long would cast serious doubts about his case. Matter stood concluded by concurrent finding of fact of Courts below. No case was made out for interference.  P.L.J.1999 Lah. 1753.

Plaintiff claimed to be owner of the suit property and alleged the defendant as only Benamidar – Original title documents were produced in evidence through defendant’s witness – Factum of possession of suit property with defendant was not denied – Defendant had earlier got the plaintiff  evicted from the suit properly – Motive for Benami transaction as alleged by the plaintiff was not believable – Effect – Plaintiff failed to plead in the plaint to establish that he had purchased the property in the name of his daughter-in-law instead of his own sons through Benami transaction – No blood relation existed between the plaintiff and the defendant/Benamidar, except that the defendant was married to one of his sons – Suit was dismissed in circumstances. PLD 2004 Kar. 17

Plaintiff had claimed that he was owner in the village and also co-sharer in Shamlat-Deh and that he having not made any encroachment, demolition of construction raised by him were illegal – Important issue in the case was as to whether plaintiff was entitled to decree claimed for – Trial Court while deciding that issue proceeded on the premises that in proceedings under S. 133, Cr.P.C it was found by Illaqa Magistrate that plaintiff had encroached upon the land which was a public place – Said order was maintained by the Appellate Court – Trial Court while deciding essential issue in the case did not discuss or take into  consideration copies of Revenue Record produced before it – Mere reliance upon findings in an order passed by Illaqa Magistrate in proceedings under S. 133, Cr.P.C in context of dispute and controversy, was not enough to rest the fate of civil suit thereon and to dismiss the same for that reason – Approach of Trial Court to the matter was somewhat inconsistent and irreconcilable inasmuch as it was found that plaintiff was owner in village and disputed site was claimed by him as a co-owner in Shamlat Deh which had not yet been partitioned – Judgments of two courts below suffering from illegality and material irregularities, were unsustainable suffering from illegality and material irregularities, were unsustainable in law – High Court set aside concurrent judgments of Courts below with direction that suit filed by plaintiff be decided afresh in accordance with law. PLD 2003 Lah. 197

            Plaintiff had filed declaratory suit with consequential relief of possession alleging that gift deed in question was got executed by defendant fraudulently. Plaintiff in his application for amendment was seeking cancellation of sale-deed in question, on the ground that respondent had got executed such document for consideration of specified amount out of which he had paid more than half of such specified price. Courts below had found that amendment sought to be introduced would change complexion of suit and would also change its cause of action. Perusal of contents of plaint originally framed and amendment  application would show that facts which plaintiff was seeking to introduce by way of amendment were tantamount to introduce altogether a different case from the one which he had originally set up in his plaint. Documentary evidence is to be produced before first hearing of suit or the same must be included in list of documents which party to suit intends to produce in evidence to support bis plea. Plaintiff by seeking amendment not only wants to introduce altogether a different case, but he seeks to bring on record sale deed which was of doubtful authenticity. Order passed by trial Court and confirmed by High Court refusing amendment to plaintiff does not suffer from any legal infirmity.  P.L.J. 2000 SC (AJ & K) 281.

            Maintainability of suit was questioned on the ground that mother of minor had not submitted affidavit in respect of minors and power of attorney on behalf of major plaintiffs. Effect. Suit had been filed for cancellation of sale deed and possession but there was no prayer clause to the effect of cancellation of sale-deed. It would not be appropriate however, not to grant relief of cancellation of sale-deed and possession thereof, merely on the ground that plaintiff, had not paid Court-fee. Plaintiffs would be required to pay Court fee, if any, on such relief at the time of execution of decree. Trial Court had rightly rejected contention of defendants as to maintainability of suit on the ground that mother of minors had not filed affidavit in respect of minors. Finding of Trial Court was Just and proper in holding that such being simple irregularities plaintiffs could not be nonSuited on such grounds.  P.L.J.2000 Kar. 3.

            Plaintiffs suit was decreed by trail Court but same was reversed in appeal. Statuts. Property in suit having been purchased earlier by defendant, same did not vest in predecessor of plaintiff from whom they alleged to have purchased the same. Such being factual provision Appellate Court was Justified in reversing findings, recorded by it relating to title these of. Judgement and decree of Appellate Court did not warrant interference in circumstances.-P.L.J.1999 Lah. 121 = 1999 MLD 2195.

Suit for cancellation of power of attorney followed by suit for cancellation of sale-deed executed on basis of such power of attorney – Omission to sue for cancellation of sale-deed in earlier suit for cancellation of power of attorney – Bar contained in O.II, R.2(2), C.P.C. – Applicability – Plaintiff claming to be owner of suit property filed earlier suit after coming to know about use of her bogus power of attorney by defendant to get possession of her property from tenant – Plaintiff at the time of filing earlier suit had no knowledge that defendant had fraudulently conveyed her property to the other defendants – Held, plaintiff had stated facts giving rise to separate causes of action and had filed two separate suits warrant rejection of plaints under any principle of law – Both suits were, thus, maintainable under Ss. 39 & 42 of Specific Relief Act, 1877 – Principles. 2004 M L D 227

Suit for declaration and injunction relating to land in question, to the effect that defendants had sold. their rights i.e., Malik Malguzari and Chakdar Qasoor Khori to plaintiff,. against consideration vide agreement of specified date, was decreed by Trial Court. Judgment and decree of Trial Court was set aside by Appellate Court and the High Court affirmed findings of Appellate Court. Validity. Perusal of contents, of agreement in question support oral testimony of plaintiffs that predecessor of defendants, had sold rights of ownership to predecessor of plaintiffs, for consideration and in receipt of consideration had transferred possession of the same to plaintiffs, and that they were in possession thereof, till now. Mutation of sale on the basis of agreement of sale was entered through the same could not be sanctioned for the lapse of Rev. staff. Plaintiffs, through evidence, documentary and oral, have successfully established there claim while no evidence to disprove claim of plaintiffs, was brought on record by defendants. Judgment and decree of trial Court decreeing plaintiffs, suit, was restored while those of Appellate Court and the High Court were set aside.-P.L.J.2001 SC 124 = 2001SCMR593.

Suit for declaration and injunction to the effect that plaintiff was the owner in possession of the suit land and that the transaction with regard to its sale in favour of defendants did not materialize as the consideration was not paid, hence relevant mutation was liable to be cancelled – Said suit was dismissed in toto by the High court – Validity – leave to appeal was granted by the Supreme court to consider the contentions of the plaintiff that the suit should not have been dismissed in toto by the High Court was on the defendants, who made positive assertion that they made the payment after denial by the plaintiff and in that connection evidence produced by the parties had not properly been assessed by he First Appellate court and the High Court and that mutation was not sanctioned and possession remained with the plaintiff as the sale consideration was not paid. PLD 2003 SC 362

Suit for declaration and permanent injunction filed by petitioners was dismissed by two Courts below while parallel suit filed by respondent against petitioners was decreed by both Courts below. Courts below have analysed evidence on record in its true perspective in, recording its findings. High Court cannot substitute conclusions which were concurrently and reasonably drawn by Courts below by proper appreciation of evidence. Where no error of law or defect in procedure had been committed in coming to finding of fact. High Court cannot substitute such finding merely because different finding could be given on that material. Petitioners could not point out any illegality or irregularity warranting interference in findings recorded by Courts below. Conclusion drawn by Courts below were not contrary to law. Doctrine of adverse possession has been ‘declared to be repugnant to injunctions of Islam. S. 28 of Limitation Act as also Art. 144 there of have been omitted from the act. No interference in findings of Courts below was warranted.  P.L.J. 2000 Qta. 56 = PLD 2000 Qta. 42.

Suit for permanent injunction dismissed by trial court, reversed in appeal. Revision petition failed in High Court. Whether co-owner in , excessive Hissadari possession of specific khasra number in Joint holding could have been restrained from use of land. Question of. Land in dispute was Joint and had not been partitioned between parties, appellant could not unilaterally cut and sell trees growing or raise any construction thereon. Appeal dismissed.  P.L.J.1999 SC 177 = PLD 1998 SC 1509.

Trial Court while decreeing Plaintiffs suit did not give its findings on each issue in terms of O.XX R. 5 CPC, therefore, Judgment and decree of Trial Court was liable to be set aside on that sole ground.  P.L.J.1996 Pesh. 307 = 1996 MLD 1389.

Vendor, however, had defective title, therefore alienation in question, was opposed to all norms of fairness. High Court however, accepted claim of original owner who was declared owner in possession to the extent of specified share in property in question. ‘Judgment and decree accepting claim of original owner having not been challenged before Supreme Court, finality was attached to the same. Contention of petitioner as postulated in his written statement, that sale transaction being matter between predecessors of petitioner and respondents and that they were not responsible for the same, is forceless. Petitioner was thus, bound to make good the loss suffered by respondents by the decree of High Court in as much as successor steps into the shoes of his predecessor and was pre-dominently subject to all liabilities with which his predecessor was saddled.-Sale of specified area by predecessor of petitioner to predecessor of respondent. Sale was complete in all respects and full amount for purchased land was paid. Vendor (predecessor of petitioner) was thus, bound to have given him entire purchased land. Subsequent loss or deduction from entitlement of vendor due to defective title was required to be made good by vendor and after his death, his legal heirs were bound to redeem such loss, failing which petitioner would be guilty of  “Tatfif”. Suit of respondent had, thus,, rightly been decreed.  P.L.J.2000 Pesh. 199.Suit for declaration to the effect that purchaser of the property was benami owner and in fact the real owner was the appellant – Suit was decreed ex-parte and the decree attained finality – Ostensible owner, taking the exparte decree a fresh sale, brought a suit for possession of the land through pre-emption – Similar suit had been filed b the respondent and both the suits were consolidated and one of the issues was to the effect as to whether exparte declaratory decree amounted to a sale and, therefore the suit for pre-emption was competent – Trail court had answered the said issue in the affirmative – Effect – Exparte decree in favour of the appellant did not amount to a sale in his favour; by its declaratory decree the court had only determined the true nature of the transaction of sale and had found that the appellant was the real owner – Effect of exparte decree was that the appellant was the real owner – Effect of exparte decree was that right from the beginning, the appellant became the owner – ordinary ingredients of  a contract of sale viz. proposal, acceptance and consideration were missing in the exparte decree – No document of title having been executed in favour of the appellant in pursuance of the exparte decree, mere mutation in the Revenue Record to implement the declaration, would not amount to sale in favour of the appellant, as mutation was never a document of title and only recorded a fact or an event – Contention based on collusion with regard to exparte decree would not held the respondent as the said decree had attained finality and its correctness could not be examined in the appellate proceedings and in any case contention that decree was collusive would not amount to saying that ingredients of sale were fulfilled. PLD 2004 SC 147

Whether plaintiffs are entitled to declaration of their ownership under agreement to sell as well as protection of their possessory rights. Proviso to Section 42 bars declaration where plaintiff being able to seek further relief than mere declaration of title, omits to do so. Agreement to sell executed by Defendant No. 1 in favour of plaintiffs does not by itself create any right on interest in or any charge on property. Since plaintiffs are not entitled to declaratory relief relating to ownership of property in suit, they would not be entitled to a consequential relief of permanent injunction to protect their possession. Grant of declaration under Section 42 and relief of injunction under Section 54 of Specific Relief Act being equitable reliefs and discretionary with court, plaintiffs are not entitled thereto.  P.L.J.1996 Kar. 61 = PLD 1996. Kar. 210

Court Fee:– Where suit is to obtain simple declaratory relief, court-fee payable in such suit is under Art. 17(iii) of the Sched. II to the Court Fees Act, 1870–Not necessary by implication for the plaintiff in suit for declaration to ask for consequential relief as contemplated under S.39 of the Specific Relief Act, 1877–Where the plaintiff has not asked for such consequential relief it cannot be held that he should have made a prayer for such a relief but if a suit is framed as one for declaration that certain document is void and is to be treated as one under S.39 of the Specific Relief Act, 1877, and partly under S.42 of the Specific Relief Act, 1877, in such a case the plaintiff is liable to pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870. Suit for declaration and cancellation of agreement to sell was filed by the plaintiff alleging the same to be void ab initio on the ground that it was not executed by her but was an act of fraud–Defendant filed application under O. VII, R.11, C.P.C. for the reJection of plaint as the plaintiff failed to fix ad valorem court-fee– Application was dismissed by the Trial Court but the Appellate Court allowed the same and directed the plaintiff to affix the court-fee under S.7(iv)of the Court Fees Act, 1870–Validity–Where the plaintiff had asked for declaration under S.42 and for cancellation of the document under S.39 of the Specific Relief Act, 1877, she was liable to pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870-­Appellate Court had, rightly exercised its Jurisdiction vested in it under the law and directed the plaintiff to affix the requisite court-fees. 2002 C L C 1549 Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 distinguished. Abdul Harrild alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca 357; Mst. Bhagan through L.Rs. v. Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 AJ&K 55; Mst. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 AJ&K 66 and Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 ref.

Value for purposes of Jurisdiction and court-fees-Plaintiff in such a suit would be entitled to fix the notional value for purposes of Jurisdiction and court-fees subject to the condition that value ‘for purposes of Jurisdiction and court-fees must be the same. 1992 M LD 1301

Court-fee was not required to be paid ad valorem on market value of subject property–Plaintiff could determine his own valuation about court-fee and Jurisdiction. 1998 C L C 27

In case of a suit for declaratory decree with consequential relief wherein a right or title to immovable property was based on alleged sale, gift, exchange or mortgage thereof, same has to be valued according to the value of property. 1991 M L D 437 Lal Din and another v. Rasul Bibi PLD 1982 Lah. 615 and Bashir Ahmad v. Mushtaq Ahmad PLD 1985 Lah. 112 rel.

Question as to what should be the value of suit for purposes of court-fee and Jurisdiction where in a suit for declaration and injunction plaintiff had claimed title on basis of sale and if the court-fee was to be paid ad valorem on value then whether it should be the current value at the time of filing of suit or the value as shown in sale-deed-Plaintiff’s case was, governed by provision of S.7(iv-a), Court Fees Act, 1870 and he had to pay ad valorem court-fee stamp on basis of value of property in dispute, shown in the deed and not in accordance with “market value” thereof.

Section 7 (iv-a), Court Fees Act, 1870 added by Sindh Finance Act, 1974, and amended by Sindh Finance Act, 1975 in the Court Fees Act, 1870 had intended the payment of court-fee to be made on the basis of the value -as pertained to the “sale, gift, exchange or mortgage thereof” while in the substituted clause (v) the intention was that the suit be valued according to “market value”. It is, therefore, obvious that in the first provision i.e, clause (iv-a),.Court Fees Act, 1870 i, was not the intention of the Legislature that the suit was to be valued in accordance with the market value but it was to be .in accordance with the value as `provided in newly-added clause (iv-a) and the obvious inference therefore is that it is to be the value as shown in the document of alienation. Present case was governed by section 7 (iv-a) of the Court’ Fees Act, 1870 and petitioners had to pay ad valorem court-fee stamp on the value of the property in dispute, a house, the value of which is shown at Rs. 30,240 as per PTD issued to him by Settlement Authorities. 1991 M L D 437

Such suit for landed property has to be valued on its market price and would be covered by provisions of S.7(iv), Court Fees Act, 1870. 1995 M L D 45

Value for purposes of Jurisdiction and court-fees-Plaintiff in such a suit would be entitled to fix the notional value for purposes of Jurisdiction and court-fees subject to the condition that value ‘for purposes of Jurisdiction and court-fees must be the same. 1992 M LD 1301 Rama Singh v. Janak Singh AIR 1920 Pat. 63; Bhagwati Prasad v. Achhaibar Singh AIR 1923 Oudh 93; Chelasani Rattyya v. Anne Brahmayya AIR 1925 Mad. 1223; AIR 15 years Digest (1951-1965); 1964 M P.L.J.(Notes) 130; Ala Baksa v. Majibal Haq AIR 1935 Cal. 739; Bhimangouda v. Sangappa Irappa Patil AIR 1960 Mys. 178; Sukumar BanerJee v. Dilip Kumar Sarkar AIR 1952 Cal. 17; Becharam Choudhuri v. Purna Chandra ChatterJi AIR 1925 Cal. 845 and Nirbheram Fatte Kurmi v. Sukhdeo Kisun Kurmi AIR 1944 Nag. 307 ref.

            Object and scope — Suit property was owned by a firm and after the death of one of the partners, the remaining partners sought title of the property – Partnership firm comprising of more than two partners was still in operation and the same had not been dissolved – plaintiffs claimed to be in possession of all the original documents of title of the suit property and in undisturbed possession over a period of several decades – Defendant filed application under O. VII, R.11, C.P.C for rejection of plaint on the ground that the plaintiffs could not seek the relief as prayed for in the plaint and the suit was time-barred – Validity – Object of rejection of plaint is not to shut out case where the plaintiff is in a position to adduce evidence for a decision of his case on merits according to law nor to prejudge a decision without affording an opportunity to the plaintiff  to place evidence on record – Such course would be opposed to the principles of natural justice – From the contents of the plaint and its annexure a prima facie case in favour of plaintiffs had been made out – Merits of the case were to be considered at the time of evidence when parties would be at liberty to propose the relevant issues in support of their respective contentions— Conditions specified for exercise of power under the provisions of O.VII, R.11, C.P.C were to be strictly construed and not to be resorted to unless these were satisfied.PLD 2003 Kar. 171

            Plaintiffs application for interim injunction against specified resolution whereby he was restrained to exercise powers of Chief Executive of company. Resolution by respondent Directors was adopted in haste without recourse to law. Essentials for grant of interim injunction being present in the suit, interim injunction was granted in favour of plaintiff against defendants restrainmg them not to interfere in functions of plaintiff (Chief Executive of Company) Nothing in such order would bar company to call fresh meeting, according to law after giving proper notice and agenda.  P.L.J.1998 Kar. 712 = 1998 CLC 237.

            Temporary injunction by trial Court. _ Application for its vacation, moved by respondent rejected. Order set aside by High Court. Validity. Suit is still pending, only stay application has been decided. It has not yet been decided that there was no right of way. Interim order issued by trial Court does not relate to right of way and order is to effect that defendants shall not carry out any construction or alteration of property left behind by their father. In present case respondent has demolished ancestral house without consent of other co-Sharers. This is clear case in which property Jointly owned by heirs of “G” has been allegedly damaged by respondent. Respondent cannot be allowed to change nature of Joint property in manner which constitutes invasion on right of appellant. Even his possession is not exclusive. Learned Judge was not right in observing that learned District Judge was not competent to grant interim relief. Judgment of High Court vacated.  P.L.J.1999 SC(AJK) 244 = 1999 CLC 598.

            Form of Suit:– Transfer of property during pendency of suit. Property in _ question was further transferred in names of defendants subsequently impleaded during trial of suit. While impleading such subsequent defendants it was incumbent upon trial court to have asked for amended plaint. Plaintiff has alleged in plaint that sale transaction was effected through agreement to sell therefore, could only be implemented if suit for specific performance was brought to court. Such transaction did not fall within ambit of S. 42 Specific Relief Act. Decree in suit in nature of declaration was not competent on that account also and being not sustainable was set aside and case remanded.  P.L.J.1996 Pesh. 307 = 1996 MLD 1389.

            Inheritance:– Suit for declaration and injunction claiming share in property of deceased lady whom he claimed to be his wife. Plaintiffs suit was dismissed for lack of cogent evidence as also his appeal against Judgment and decree of trial Court. Validity. Plaintiff produced not a single independent witness. Witnesses produced by plaintiff besides being relatives of plaintiff, expressed divergent version about alleged marriage, duration whereof ranging from 1924, 1929, 1945 and 1984 AD.. Evidence of such witnesses was thus. false and they were not .present at the time of alleged marriage. Witnesses were at variance even on amount ofHaq Mehar. Admittedly consumation of marriage had not taken place nor the same was alleged. No suit for restitution of conjugal rights had been filed from plaintiffs, side. Trial Court had, thus, rightly concluded on basis of evidence on record that alleged nikah was not proved. Statemet of real sister of deceased lady made before Rev. officer as to factum of marriage having taken place was also of no help to plaintiff as she was not cross-examined, and even, otherwise, decision based on that statement stood cancelled on Rev. side against which no appeal was filed. Concurrent findings of Courts below rightly found plaintiff to be not entitled to share of inheritence of deceased lady.  P.L.J.1999 Lah. 1547.

Exclusion from inheritance on account of gift deed in favour of other heirs excluding plaintiff‑‑‑Quantum of proof required for proof of gift deed was lacking‑‑‑Effect‑‑‑Document required by law to be attested could not be used as evidence until at least two attesting witnesses had been called for purpose of proving execution thereof, if they were alive and capable of giving evidence‑‑‑ No evidence had been produced by defendants (donees) that scribe or attesting witnesses were not alive, therefore, presumption would be that they were alive‑‑‑Original gift deed was shown to have been executed on 29‑11‑1988 and date of registration as shown by said document was 28‑i1‑1988‑‑‑Such fact could not be ignored and that anomaly could have been resolved by scribe of document who could produce relevant register to settle the same‑‑‑Defendants’ failure to produce scribe of document would render adverse presumption to be drawn against them‑‑‑Gift deed having not been proved in accordance with law, plaintiff who was daughter of deceased could not be deprived of her inheritance from her father’s property: 1995 M L D 1841

            Word “property” :– Question involved was entitlement/disentitlement to recover specified amount of money. Word “property” as used in S. 42, could include “money”. Suit for declaration was, thus, competent.-P.L.J.1999 Kar. 234 = 1998 MLD 234.Deceased was governed in matters of inheritance by Shariat Law. Mutations of inheritance on basis of Custom were sanctioned in 1939 while suit for declaration was filed by daughters of deceased in 1985, when payment of produce was stopped to by defendants. That being first attack on their rights plaintiffs suit while counting time from that date was well within time.-P.L.J.1997 Lah. 1183 = 1997 CLC 659.

            Suit for declaration, injunction and accounts. Trial Court refused to admit suit on the ground that suit was arbitrarily valued and subject-matter of suit, exceeded Rs. 1,00,000 which was maximum limit of pecuniary Jurisdiction of trial Court. Order was upheld by First Appellate Court on the ground that consequential relief of possession was not sought, as was requirement of S. 42 of the Specific Relief Act, 1877. Status. Suit either to be admitted or rejected or returned. Order of the Courts below were set aside and suit was remanded back for appropriate order.  P.L.J.1999 Kar. 64 = 1998 CLC 1995.

            Correction of date of birth:– Suit for declaration whereby correction of date of birth was prayed, was decreed ex-parte by trial Court and the same was affirmed by Appellate Court. Defendants application for setting aside such decree was dismissed by Courts below. Validity. Instead of framing issue on controversial point i.e., whether or not there was sufficient cause for setting aside ex-parte decree and thereafter examining evidence of parties, trial Court after hearing counsel came to conclusion that there was no sufficient cause for setting aside ex-parte decree. Same view was taken by Appellate Court while dismissing appeal. Important questions having been raised touching Jurisdiction of Court and also that absence of defendant was not wilful or intentional trial Court should have framed issue to settle such controversy but it did not do so and proceeded to dismiss petition for setting aside, ex parte decree although affidavit was attached in support of contents thereof, though there was no Such counter affidavit by plaintiff with his reply filed to contest petition forgetting aside ex ^ parte decree. Even, otherwise, Court acted in haste in disposing of suit ex-parte on same day without examining any evidence in proof of claim made in suit itself. Law also requires that case should be decided on merits for which parties should be given chance. No such chance was however, provided to contesting party in present case. Impugned order passed by Courts below being arbitrary, capricious and illegal was set aside. Sufficient ground was provided in terms of affidavit attached with application for setting aside ex-parte decree to set aside the same. While setting aside ex parte decree, case was remanded to trial Court for trial in accordance with law.-P.L.J.1999 Lah. 1758 = 1999 CLC 1377.

            Whether consent decree can be challenged, Admittedly, order has been passed on basis of compromise as is evident from its bare reading. Record reveals that after submission of objections on report of local commission, parties kept seeking adjournment from 10.12.1996 to 10.6.1997 as talks of compromise were going on. Thus impugned order/decree was not passed abruptly and is result of due deliberation and consultation which continued for about six months. It is also fact that authority given by plaintiffs/petitioner to counsel who had signed compromise statement on their behalf had never been revoked by them. Thus such compromise entered into by counsel on behalf of party would bind such party. Section 115 C.P.C. applies to cases, involving illegal assumption, non exercise or irregular exercise of Jurisdiction. Neither any such aspect has been put forth or highlighted, nor is seemingly available so as to attract or entail provisions of Section 115 C.P.C., which thus can neither, come into play nor pressed into service. Consent Order/decree can only be challenged on ground ‘ of fraud. Judgments and decrees now sought are unexceptionable as same neither appear to suffer from any infirmity or any irregularity no perversity or arbitrariness.  P.L.J.1999 Lah. 1051 = 1999 CLC 1287.

            In-door management of a company:– Suit by Chief Executive of -company against some of Directors of company. Maintainability and pre­requisites for such an action. Courts would not be competent to interfere in day-to-day working of any company on doctrine of indoor management. Such bar, however, was not absolute and there were situations where Directors or shareholders of a company could bring case before Court against company and its Directors. Court would be Justified to interfere; where majority had acted in depriving minority of their lawful and legitimate rights; acts complained of were ultra vires of Memorandum and Articles of Association; Directors had acted mala fidely and against interest of company; there was violation of principles of natural Justice; and acts complained of amounted to fraud and misrepresentation. Plaintiffs suit that he, as Chief Executive of Company, was entitled to perform his functions in accordance with law and that curtailment of his power by impugned resolution was illegal and ultra vires of specified meeting, was maintainable for plaintiff had no other remedy available to him under any other law through which he could seek declaration as to his legal status in Board of Directors after passing of resolution in question.-P.L.J.1998 Kar. 712 = 1998 CLC 237.

            Settlement Dispute:– Purchase of suit land by predecessor-in-interest of petitioners. Entry in name of respondents on Rev. record. Petition before Settlement Officer by predecessor-in-interest of petitioners dismissed on ground of limitation. Acceptance of revision petition by Additional Commissioner, but set aside by Member Board of Rev Suit for declaration and possession filed by petitioners dismissed by trial court and upheld in appeal. From documentary evidence it appears that petitioners have failed to show that same are in respect of suit land. Petitioners have failed to prove that possession and ownership over property in dispute and had only filed suit for declaration without seeking consequential relief. Even otherwise, suit filed by petitioners was hopelessly barred by time, petitioners did not give any cogent reasons for not challenging Rev. entries within prescribed period as they were very much present at time of final attestation by Settlement Officer. Orders of Member of Rev. has obtained finality and respondents have acquired vested right with passage of time. Impugned Judgment being unexceptionable, is amenable to any interference in exercise of revisional Jurisdiction under Section 115 CPC. Petition devoid of merits is accordingly dismissed.-P.L.J.1998 Qta. 279 – 1998 CLC 1794.

            Joint Family Property. Predecessor-in-interest -of parties having died in 1957, plaintiffs and defendants had carried on business together and also lived in parental house. Parties’ mother having died in 1993, defendants-tried to misappropriate Joint family property and tried, to exclude plaintiffs from such property. Period of limitation for filing suit would, thus, start run with effect from 1993 from refusal of defendants to allow plaintiffs to share Joint family property. Defendant’s objection that Art. 127, Limitation Act, 1908 was applicable to Joint Hindu Family alone, as misconceived. Word “Hindu” which was used in Art. 127, Limitation Act, 1871 was omitted “from Art. 127, Limitation Act, 1908, therefore, by such omission, Art. 127, Limitation Act, 1908 was made applicable to persons of all faiths. Defendants’ claim that suit having been filed beyound period of limitation and that causes of action in suit were multifarious, therefore, plaint was liable to be rejected in terms of O.VII, R. 11, C.P.C, was of no consequence, for, suit was within time in terms of Art. 127, Limitation Act, 1908 since causes of action Joined therein were neither dissimilar, nor discordant. Even if causes of action were multifarious, Court could order separate trial but plaint could not be rejected on that ground. Application for rejection of plaint was not maintainable in circumstances.-P.L.J.1999 Kar. 2218 = 1998 CLC 1425.

            Maintainability. Respondents were in possession of property in dispute thus suit for mere declaration filed by respondents was maintainable.  P.L.J.1999 Qta. 98 = 1999 MLD 2087 = NLR 1999 Rev. 99.

            Misreading & non-reading of evidence. Grounds of attack. Sale-deed in favour of plaintiff was in respect of disputed house was executed by original owner. It is also established that defendant was brought in as tenant in house by father of plaintiffs. Stance of two witnesses that original owner re-purchased house from father of plaintiffs is not supported by any sale deed or any other evidence. Courts below, therefore, not read evidence on record in its correct perspective and have also misread important evidence. They have, therefore, legally erred in decision of case which resulted in miscarriage of Justice. Plaintiffs are owners of house in question and defendant was first occupying it as their tenant but later on denied their partnership.  P.L.J.1999 SC 1114 = PLD 1998 SC.1502.

            Transaction of land on basis of consent decree. No evidence was available on record to suggest that defendant had ever enJoyed fruits of sale of land in question. No body came forward to say that defendant shared produce and no-tenant deposed that vendor attorned him to defendant. Late execution of decree in Rev. record; constant refusal of heirs, of vender to accept defendants, claims of ownership over land in question and deep slumber and indifferent -attitude of defendant was not expected of real vendee. Vendor never relinquished his claim or owned defendant as his /substitution relating .to land in question. Vendor at the time of filing of declaration was quite alive to his title of land in question. Challenge of ownership and possession was not reported in terms of Land Rev. Act, 1967 to Patwari for period of at least five years. Preponderance of evidence would suggest that Trial Court on basis there of had rightly decreed heirs suit against defendants claim based on consent decree. First Appellate court did ,not advert to material on iccord and had fallen in ignoratio elenchi by treating claiming defendant as apodictic as if she spoke as an oracle. Plaintiffs also deserved same solemnity and their claim should have been Juxta-posed in its true perspective. Finding of First Appellate Court resulting in dismissal of plaintiffs suit, were set aside while that of Trial Court in decreeing suit was restored.  P.L.J.1999 Lah. 1364 = 1999 MLD 2783.

            Withdrawal of powers of Chief Executive of Company by Directors. They called meeting of Directors hastily without inviting nominated Directors of Company. Companies which had nominated their representatives as Directors of Company in question were repositories of huge amount of public funds which had been invested and advanced. No proof was available on record that nominated Directors of Company were served notices of meeting .of Directors. Even if it was presumed that notice of meeting was issued upon nominated Director, it would have been impossible to attend meeting due to short notice. Resolution adopted by Directors of Company in hastily summoned meeting, in absence of nominated Director, was ultra vires’ mala fide, and inoperative.  P.L.J.1998 Kar. 712 = 1998 CLC 237.

            Estoppels. Withdrawal, of appeal against order of ejectment by plaintiff on the ground, that he would seek his remedy through civil suit. No objection by defendant. Plaintiff was wrong in asserting that defendant was estopped from challenging Jurisdiction of Civil Court. Jurisdiction of Court was conferred and regulated by law. There was no estoppel against law nor there could be waiver against statute. Respondent being not entitled to relief against order of ejectment passed by Rent Controller, his suit was barred by law and plaint in suit was rejected.  P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil 647.

 Adverse possession‑‑Proof‑‑­Plaintiffs claimed ownership of land in question on the basis of agreement of sale executed by predecessor‑in‑interest of defendants in favour of father of plaintiffs and plaintiffs after death of their father remained in possession of suit land as its owners for more than forty years without any interruption or interference by defendants‑‑‑Agreement of sale which had been challenged by defendants after about forty‑two years of its execution and which otherwise proved to be genuine, would be presumed genuine document under Art. 100 of Qanun‑e‑Shahadat, 1984 being of more than thirty years old‑‑‑If in pursuance of an agreement to sell or under a defective title the possession was handed over to transferee and they remained in possession of suit land for more than 40 years considering themselves as owners to the exclusion of true owners, their possession would become adverse. 2001 M L D 493 Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others 1999 MLD 824; Ahmed Khan v. Rasul Shah and others PLD 1975 SC 311 and Gulzar Shaikh v. Bashirullah and 3 others Civil Appeal No.37 of 1987 ref.

AIR 1920 Pat. 63; AIR 1923 Oudh 93; AIR 1925 Mad. 1223; AIR 15 years Digest (1951-1965); 1964 M P.L.J.(Notes) 130; AIR 1935 Cal. 739; AIR 1960 Mys. 178; AIR 19$2 Cal. 17; AIR 1925 Cal. 845 and AIR 1944 Nag. 307 ref.

Amendment weather wii change the nature:– Plaintiffs subsequent application for amendment of his plaint introducing therein prayer for possession was dismissed by Trial Court as also by the High Court. Courts below had dismissed amendment sought on the ground that the same would change nature of suit and was sought after considerable delay from the date of objection raised by defendant in -his written statement that possession of land was with him. Conversion of declaratory suit to suit for possession would not change-nature of suit in substance, in as much. as basically plaintiffs intend to annul gift deed and by amendment they were seeking additional relief of possession. Amendment could not be disallowed merely because that was being sought after expiry of period of four years. Orders of Courts below disallowing amendment of plaint were set aside and plaintiffs were directed to amend their respective plaints on payment of specified costs.  P.L.J. 2000 SC (AJ&K) 237.

            Grant of temporary injunction:– Injunction that tenant in possession may not be dispossessed otherwise than due process of law. Order of temporary injunction upheld in appeal, prohibitory injunction was issued, ‘whereby, petitioners/defendants were restrained to take law into there own hands by evicting the respondent/plaintiff per force from land in question, but were permitted to avail any legal remedy in appropriate forum.  P.L.J.1999 Lah. 1060 = 1999 CLC 1415.

 Burden to prove–­Claim of plaintiff was that house owned by her husband was orally gifted in her favour followed by a memorandum of gift—After death of husband of plaintiff house was transferred in favour of legal heirs of deceased vide mutation—Suit filed by plaintiff was concurrently dismissed by Courts below holding that plaintiff could not produce any evidence in support of oral gift made in her favour by her husband–­Plaintiff in proof of her claim had produced marginal witnesses of memorandum of gift who fully proved its execution—Both Courts below had not disbelieved said witnesses—By proving execution of memorandum of gift, plaintiff had discharged her initial burden and it was for defendants to establish that memorandum of gift was forged and anti-dated, but they could not establish same by any evidence—Appellate Court after holding that execution of memorandum of gift was duly proved, should not have looked for independent evidence of oral gift–­Judgments and decree of Courts below were set aside and suit was decreed by High Court. 2002 M L D 993 ­Disputed mutation of inheritance was attested in the year, 1919,‑ while the same was assailed in the year, 1996‑‑‑Trial Court dismissed the suit being time‑barred and the judgment was maintained by Appellate Court‑‑­Validity‑‑‑Onus to prove factum of possession and suit being within limitation, was heavily placed on the plaintiff but he had failed to discharge the same through reliable evidence‑‑‑Solitary word of the plaintiff did not rehabilitate his case‑‑‑Mere assertion of the plaintiff that attestation of suit mutation was a result of conspiracy between Revenue Officials and predecessor‑in‑interest of the defendants and that the plaintiff had been receiving usufructs, without a positive attempt on his part to substantiate the same, was of no consequence‑‑‑Both the Courts below had rightly found that the suit was clearly barred by time‑‑‑Both the Courts having properly dealt with the matter and dismissed the suit of the plaintiff for valid reasons‑‑‑High Court declined to interfere with the concurrent findings of fact by the Courts. 2002 C L C 1704 ­Transaction of property ‑‑‑Pardahnashin lady‑‑‑Good faith‑‑‑Onus to prove mutation of gift allegedly made in favour of defendant by the plaintiff, who was a Pardahnashin lady‑‑‑Defendant was brother of the plaintiff and onus to prove such transaction was on the former‑‑‑Trial Court decreed the suit while the Lower Appellate Court reversed the judgment and dismissed the suit‑‑­Validity‑‑‑Where the defendant failed to establish that such transaction was made in his favour out of free‑will and the disputed mutation was correct and genuine, judgment and decree of the Lower Appellate Court was set aside and that of the Trial Court was restored.  Inche Norih Binte Muhammad Tahir v. Sahik Allie Bin Omar Bin Abdullah AIR 1929 PC 3 ref.. 2000 C L C 1131

Cancellation of document‑‑­ Execution of a registered sale‑deed was disputed and the plaintiff, denied its execution in favour of the defendant‑‑­Plaintiff was old, illiterate and Pardahnashin lady and the defendant was her real daughter‑‑‑Both the Courts below had dismissed the suit of the plaintiff for the reason that the disputed sale‑deed was registered document and the plaintiff admitted her thumb‑impression‑‑‑Plaintiff never consciously executed the disputed sale­-deed and the defendant, the beneficiary of the document, failed to establish through affirmative evidence that the sale consideration was ever paid to the plaintiff‑‑‑Defendant, the beneficiary, also failed to establish that she or her husband had the means to purchase the property in dispute‑‑‑Where the plaintiff was an old, ignorant and totally illiterate lady, burden was upon the defendant beneficiary throughout to prove and establish through unimpeachable convincing evidence that the sale transaction was genuine and was for valid consideration‑‑‑Defendant alongwith her husband having tried to deprive the plaintiff (her mother) of the valuable property through fraud and misrepresentation judgments and decrees of both the Courts below were set aside and the sale‑deed in question was cancelled. 2000 Y L R 1678 Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Muhammad Shaft and others v. Allah Dad Khan PLD 1986 SC 519; Irshad Hussain v. Ijaz Hussain and 9 others PLD 1994 SC 326 and Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 ref.

Claim of ownership based on transaction of sale and on basis of adverse possession – Plaintiff on basis of documents on record had proved that he had purchased one half of plot in question and the other half was also in his possession whereon he had claimed ownership on basis of adverse possession-Plaintiff was not debarred from taking plea of adverse possession in case he failed to prove his possession on basis of transaction of sale–Finding of Courts below including the High Court that sale transaction on half of the plot and adverse possession on the other part was not proved was erroneous and fallacious and contrary to record–Defective document of title although does not create title in favour of purchaser yet the same would be relevant for collateral purpose and could be used to prove possession–Plaintiff being notoriously in possession of land in question for a period of more than 12 years, his possession on the same would be regarded as adverse – Defendant had admittedly obtained decree of land which was in possession of plaintiff through fraud and collusion, therefore, the same could not affect plaintiff’s title over properly partly on basis of sale and partly on basis of adverse possession.  P.L.J. 2002 SC (AJK) 55 PLD 1964 SC 220; AIR 1926 Oudh 98 & 431; PLD 1975 SC 311;  P.L.J.1999 SC (AJK) 78; PLD 1984 SC (AJK) 120; 1992 SCR 286 and AIR 1924 Cal. 1046 ref.

Computation point for Limitation:– Deceased was governed in matters of inheritance by Shariat Law. Mutations of inheritance on basis of Custom were sanctioned in 1939 while suit for declaration was filed by daughters of deceased in 1985, when payment of produce was stopped to by defendants. That being first attack on their rights plaintiffs suit while counting time from that date was well within time.-P.L.J.1997 Lah. 1183 = 1997 CLC 659.

Demarcation of land – dispute between the parties related to the demarcation of portion of land owned by the parties related to the demarcation of portion of land owned by the parties— Trial Court appointed a senior Advocate as Local Commission and basing on the report of the commission, suit was decide – Appellate Court dismissed the appeal and maintained the decision of the Trial Court – Defendants contended that the courts below had fallen in error by taking into consideration the report of the Local Commission, therefore, their judgments and decrees were against the law and required interference – Trial Court had placed its reliance on report of the local Commission as the same was admitted without any objection from the defendants’ side – Report of the Local Commission was evidence in the case, therefore, the same was sufficient on the strength of which finding could be justifiably recorded by the Trial Court under the law – Trial Court had based its findings on the report of the Local Commission, which fully demarcated the land of the defendants vis-à-vis the land of plaintiffs and the site plan had been exhibited – High Court declined to interfere with the concurrent findings of fact by the courts of competent jurisdiction – Revision was dismissed in circumstances.  PLD 2003 Pesh. 23

Dismissal of plaintiffs suit for declaration and injunction. Only legal points and not factual aspect could be discussed in revision. Factual aspect of case having already been decided by concurrent Judgments of Courts below could not be agitated before Revisional Court. Grounds stressed before ‘High Court were almost the same which were argued before Appellate Court. No legal flaw in Judgment of Appellate Court had been pointed out by petitioner. Petitioner’s contention that Appellate Court did not comply with provision of O.XLI, R. 31 C.P.C. was without force, therefore, the same could not warrant interference of High Court. Appellate Court while upholding trial Court’s -findings considered evidence issue-wise. Petitioner, thus, could not point out any Jurisdictional defect in impugned Judgment nor-he could show any misreading of relevant evidence or overlooking of any important evidence. Ownership of disputed property being involved in the case, evidence had been evaluated by both Courts below. Dispute relating to ownership of property in question, was question of fact and the same was determinable on thorough analysis of evidence led by parties. Evidence on record having been evaluated by Appellate Court, Scope of revisional Jurisdiction was limited and no interference was Justified unless patent illegality, want of Jurisdiction, mis-exercise of authority or material irregularity could be disclosed. Concurrent findings of fact recorded hy Courts below did not warrant interference in circumstances.-P.L.J.2000 Qta. 18 = PLD 2000 Qta. 66.

Documentary evidence‑‑­Statement with regard to total outstanding amount against the plaintiff as arrears was prepared by “Wasal Baki Nawees” which was a public functionary working under the control of the defendant‑Government‑‑‑Said document which was produced by the defendant Government‑itself and was admitted in evidence, would be binding on defendant in suit filed against it‑‑‑Defendant after relying upon said document, could not wriggle out of the vigour of the same. 2002 M L D 797

Evacuee Trust Properties (Management and Disposal) Act, Suit, for possession and Permanent Injunction of Balmiki Mandar. Judgment & Decree passed by Trial Court on oath on Holy Quran set aside in appeal and case remanded for trial on merits. Any dispute in respect of property, like suit property, would be governed, by Act XIII of 1975 i.e. Evacuee Trust Properties (Management and Disposal) Act, 1975. As and when question arises as to whether evacuee property is attached to charitable, religious or educational trust or institution or not, shall be decided by Chairman whose decision shall be final and shall not be called in question in any court. Jurisdiction of Civil Court is barred u/S 14 of said Act. Order of trial court as well as appellate court are without Jurisdiction.  P.L.J.1996 Pesh. 29 1995 CLC 2028.

Fake and fraudulent transaction. Petitioner could not point out any flaw or legal infirmity in impugned Judgment of High Court, which would warrant interference. High Court was right in holding that findings of Courts below were essentially of facts which were recorded after sound appraisal of evidence keeping in view relevant law; therefore, such findings were not open to interference in revisional Jurisdiction. First Appellate court had correctly found on evidence that plaintiff was illiterate and Parda -observing lady who , never entered into contract of sale, nor received any consideration nor appeared before Rev. Officer and that her rights were sought to be usurped through impugned mutation based on fraud. Law regarding disposition of property by Pardanashin ladies which was equally applicable to illiterate and ignorant women was fairly wellSettled that person claiming benefit of such disposition must establish affirmatively by strongest and most satisfactory evidence that transaction in question, was real, genuine and bona fide. Courts below had rightly declared impugned transaction as not proved and their concurrent findings warrant no interference.-P.L.J.1997 SC 1180 – 1997SCMR459.

Form of suit – Suit for declaration instead of suit for specific performance of agreement – Document relied upon by the plaintiff had two separate aspects and they were Joined together – On one side the document was relied on as promissory note whereas on the other side the same was treated as agreement – Plaintiff filed suit for declaration for the recovery of certain amount on the basis of the document – Validity – Such misjoinder of claims given in the deed could provide no benefit to plaintiff because portion of the deed qua the agreement the witnesses were necessary and so associated while claim qua the money in the deed witnesses were not necessary but still they were there – Plaintiff in the present case himself had damaged the quality of the deed as promissory note – Second portion of the deed, prima facie, indicated the same to be an agreement to sell, for the executant undertook to sell certain portion of the land – Plaintiff ought to have had brought a suit for specific performance of contract for the portion relating to agreement to sell – Suit for declaration was not maintainable in circumstances, PLD 2002 Pesh. 1

Improvement made in mortgaged property – Costs of improvements were to be awarded to a particular party which made improvements in good faith –  Plaintiff, in the present case, on basis of mortgage deeds had asserted his title by alleging that mortgage deeds in fact were sale-deeds and as such he could be declared to be owner of land mortgaged to him – Plaintiff, in circumstances, was not entitled to claim any costs for improvements on suit-land. 2002 CLC 1121  Fazal Haque and others v. M.D. Afan and another PLD 1971 Dacca 158; Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63; State Bank of Pakistan v. Khaledar M.A. and others PLD 1963 Dacca 844; Mir MatiulLah. and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998 and Abdul Rahman and another v. Alif Din and others Civil Appeal No. 144 of 1998 ref.

 Injunction:– Plaintiff had undertaken before Magistrate in proceedings under S. 145, Cr.P.C. that he would be bound by decision of Rent Controller. Rent Controller had found plaintiff to be tenant. Prayer for injunction (in presence of such statement) in terms of S, 56 (J), Specific Relief Act, 1877 would be hit by principles of estoppel. Trial Court had correctly dismissed plaintiffs suit.  P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil 647.

Insanity and disease of epilepsy.  Burden was on plaintiff to prove that vendor, was of unsound mind for which he made no efforts during trial. Trial though continued for more than five years plaintiffs did not move Trial Court so that vendor might be’ medically examined in that regard. Evidence adduced by defendants was plausible, natural and there was no iota of doubt. Reasons given in favour of plaintiffs by Lower Appellate Court as the High Court were not cogent and sound and the same could not be accepted. Person suffering from epilepsy” could not be termed as of unsound mind. Judgment -of Trial Court was perfectly right and was based on very valid and cogent reason in consonance with established principles laid down by Supreme Court. Reasoning and conclusion of Lower Appellate Court as well as High Court was based on . unsound reasoning and contrary to evidence recorded by Trial Court and same could not be accepted. Judgments of High Court as well as of Lower Appellate Court were set aside and that of Trial Court was restored whereby suit filed by plaintiffs was dismissed.  P.L.J.2001 SC 1526 = 2001 SCMR 871

Interference by High court in exercise of Revisional powers — Suit for declaration and injunction to the effect that plaintiff was the owner in possession of the suit land and that the transaction with regard to its sale in favour of defendants did not materialize as the consideration was not paid, hence relevant mutation was liable to be cancelled – Said suit was dismissed in toto by the High Court – Validity – Record would show that the vendee, except the mutation containing the alleged admission of vendor, had not brought any document showing payment of sale consideration – Vendor had admitted the sale of land but denied the payment of sale price to him in the written statement and also in his statement before the Court – Vendor also denied to have made any admission regarding the payment of sale price could also be proved through oral evidence which had to be direct and of unimpeachable character – Payment admittedly was not made before the Revenue officer and the remaining witnesses including the vendee herself were not consistent about the mode and manner of payment – Court of first instance and appellate court, after detailed discussion of evidence, concluded that sale consideration was not paid and the finding of fact of the two courts was reversed by the High Court with the observation that the vendor failed to discharge the onus of proving the fact relating to the non-payment – Vendee had not been able to satisfy even the Supreme Court that the concurrent finding of the two courts on the question of fact (payment) suffered from any defect of misreading or non-reading of evidence or the material facts were misconstrued in coming to the concluding that sale price remained unpaid – Revisional jurisdiction of High court being discretionary was not to be exercised if the substantial justice had been done between the parties – Mere fact that the High Court differed on a question of fact or a mixed question of law and fact was not a valid ground for interference in the concurrent findings – High court, in the present case, reversed the findings of fact through reappraisal of evidence in civil revision beyond the scope of revisional jurisdiction – Misappreciation of evidence was different to the misreading and non-reading and there was no concept of upsetting the findings of fact by the high Court through appraisal of evidence in revisional jurisdiction in case of misappreciation of evidence by the lower courts – Supreme Court while setting aside the judgment of the High Court, restored that of judgment and decree passed by the Appellate court. PLD 2003 SC 362.

Interim injunction, grant of – Concurrent findings of fact by the Courts below –  Plaintiffs assailed general power of attorney and claimed the same to be the result of fraud and forgery – Both the Courts below declined to grant the injunction in favour of the plaintiff – Validity or otherwise of the document had yet to be determined and adjudicated upon at the trial after evidence of the parties was recorded – Effect – Both the Courts below had rightly declined to grant temporary injunction and had decided question of pure fact in lawful exercise of their exclusive Jurisdiction in a proper manner – High Court declined to disturb the concurrent findings of fact by the Courts below, PLD 2001 Pesh. 126 Mst. Raisa Bano and 7 others v. Muhammad Riaz Awan and 2 others 1996 MLD 238; Bakhtawar and others v. Amin and others 1980 SCMR 89; Muhammad Jan Ghaznawee v. Haji Muhammad Qabeer and 3 others PLD 1977 Quetta 60 and Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.

Interim injunction, grant of – Registered sale-deed was questioned – Interim injunction in favour of the plaintiffs – Contention of the defendants was that as the plaintiffs had not sought declaration about their ownership and title in the suit whereas the other relief, in the form of injunction, possession and mesne profits being dependent upon ownership of plaintiffs, same could not be granted without a declaration about their ownership – Validity – Where plaintiffs had not sought declaration of their ownership in the suit, a consequential relief of injunction, permanent or interim, could not be granted to them – Due to the material omission in the prayer clause in the suit, the plaintiff, prima facie, had no case for grant of an interim injunction in their favour – High Court set aside the interim injunction granted in favour of the plaintiff. 2002 CLC 571

Muhammadan Law:– Document required by law to be attested could not be used as evidence until at least two attesting witnesses had been called for purpose of proving execution thereof, if they were alive and capable of giving evidence‑‑‑ No evidence had been produced by defendants (donees) that scribe or attesting witnesses were not alive, therefore, presumption would be that they were alive‑‑‑Original gift deed was shown to have been executed on 29‑11‑1988 and date of registration as shown by said document was 28‑i1‑1988‑‑‑Such fact could not be ignored and that anomaly could have been resolved by scribe of document who could produce relevant register to settle the same‑‑‑Defendants’ failure to produce scribe of document would render adverse presumption to be drawn against them‑‑‑Gift deed having not been proved in accordance with law, plaintiff who was daughter of deceased could not be deprived of her inheritance from her father’s property: 1995 M L D 1841

Onus to prove the ownership in suit property – Plaintiffs failed to prove that they were owners in possession of the suit property – Both the courts below concurrently dismissed the suit as well as appeal filed by the plaintiffs – Validity – Plaintiffs failed to point out any misreading or non-reading of the evidence on the record – Both the Courts below had appreciated the evidence on the record an the inference drawn from such appreciation had been lawfully made – No illegality or infirmity in the judgments had been indicated – Person who asserts/alleges a particular fact and wants the court to believe that such fact exists he shall be required to prove the existence of such a fact – Petitioners, in the present case, had not been able to prove successfully that they were owners in possession of suit land by virtue of inheritance or exchange and that the defendants had no interest in the same – Onus to prove their case was on the plaintiffs who had failed to prove their assertions and version in the plaint – High Court declined to interfere with the judgments and decrees passed by both the courts below – Revision was dismissed in circumstances. PLD 2003 Pesh. 49

Ownership claim by Taraddadkars‑‑‑Plaintiffs filed. suit for declaration that they being Taraddadkars of suit land by virtue of Mutation No.83 were entitled by operation of law to ownership of 10/16th share thereof and not 1/4th share as had been given to them through Mutation No.227‑‑‑Trial Court decreed the suit‑‑‑Appellate Court upheld the decree‑‑‑Validity‑‑‑Main condition of Mutation No.83 (containing terms and conditions of Taraddadkari) about share of produce agreed upon between parties was up to 1/4th share, which remained unchanged‑‑‑Mere oral‑statement of one of defendants’ witness admitting the share of produce to the extent of~10/16th share, could not be given much weight in the light of admitted document on record i.e. Mutation No.83 and particularly when there was no written instrument between the parties changing terms and conditions thereof‑‑‑Had parties intended to change the terms and conditions of Mutation No.83, they could have easily done so by another written instrument, which could have fallen within the category of notation of contract‑‑‑Plaintiffs though present at the time of attestation of Mutation No.227, but had not raised any objection against it and had filed suit after considerable time, which had adversely reflected upon their conduct‑‑‑Mutation No.227 had rightly been attested in the light of provisions of S.114(2)of Punjab Tenancy Act, 1887, where-under Taraddadkars were entitled to ownership of that part of land under Taraddadkari, which corresponded to the share of produce‑‑‑Both the Courts below had grossly misinterpreted and misread Mutation No.83‑‑‑High Court accepted appeal and set aside impugned judgments and decrees with the result of suit of the plaintiff stood dismissed. 2002 C L C 1411

Plaintiff had denied having made any sale or having got any mutation attested— Defendants had taken plea that there was a valid sale and a valid mutation in their favour— Defendants had to prove valid transaction of sale in their favour – Defendants had not produced original mutation and Revenue Officer who attested mutations in their favour was also not produced by them – Even Lamberdar who allegedly identified the plaintiff was not produced and no evidence was available with regard to the payment of consideration – Case of defendants thus was of no evidence – Concurrent judgments and decrees of courts below were set aside, suit filed by plaintiff would be deemed to be pending before the Trial court which would give an opportunity to the defendants to prove sale allegedly made in their favour by the plaintiff – Trial court, after recording evidence would decide whether plaintiff had validly sold suit-land to defendants. 2004 M L D 410                     

Plaintiff seeking declaration of land in question being ownership possession. Land in question, being Banjar Qadeem and Gher Mumkin Darya seemed lying vacant not under of any cultivator. Where property was not in possession of any one then rightful owner could claim possession of such property as possession would follow title. Suit being for declaration anybody whose ownership or possessor rights were interfered with or threatened could come to civil Court at any time when his possession or rights stood threatened. No question of -limitation would, thus,’ arise in such cases. Appellate Court, therefore had rightly decided point of limitation. Additionally defendant had not been able to show good ground as to why revision was not filed in time and why should delay be condoned. Only reason which was assigned for delay was that there were some complicated questions for the department due to frequent misplacement of relevant files and paper which were the cause of delay in filing revision. Application for condonation of delay did not show sufficient ground and explanation for period of delay, therefore, same was rightly dismissed by Appellate Court. Judgment of Appellate Court being un-exeeptionable, revision was not maintainable in circumstances.-P.L.J.1999 Lah. 1790.

Plea of pardahnashin lady – Failure to produce secondary evidence – Sale mutations in favour of defendants were assailed by plaintiffs on the ground of fraud – Trial court decreed the suit for the reason that the plaintiffs were pardahnashin ladies and the person who identified them was not produced as witness by the defendants – Judgment and decree passed by the Trial court were maintained by appellate court – Validity – No attempt was made by defendant to produce the identifier although he had died during the proceedings – No evidence was available to show that at the time of submission of list of witnesses by the defendant, the identifier was not alive – Even no attempt was made to produce secondary evidence due to the death of the identifier – No corroborative evidence of the solitary deposition of one of the defendants, although the Trial court had given sufficient opportunities to establish the genuineness of the sale mutation in their favour – concurrent findings of the two courts below were neither suffering from any jurisdictional or any other legal infirmity or misreading or non-reading of evidence – Such findings were immune from interference by High court under its revisional jurisdiction. PLD 2004 Pesh. 30

Prayer for declaration and Injunction. Whether suit was irregular. Declaration and injunction has also been prayed for specific performance -of agreement entered into between parties, and it cannot be said that defendants were not given chance of putting appropriate defence. On other hand, plaintiff had put on guards defendants with respect to legal process regarding fulfilment of agreement. There is no irregularity or illegality in form of suit.  P.L.J.1998 Pesh. 130 = PLD 1998 Pesh. 52.

Proof of execution of Power of attorney:– Plaintiff had challenged execution of general power of attorney in favour of defendant on basis of which property of plaintiff was got mutated in favour of defendant‑‑­Plaintiff had alleged that impugned general power of attorney and mutation being result of fraud and misrepresentation, were illegal and ineffective on the right of plaintiff‑‑‑Disputed power of attorney, though was registered one, but neither Sub‑Registrar, who had registered same was produced to prove endorsement by him on the document nor person who had identified executant of said document, was produced in evidence‑‑‑Validity‑‑‑When a document, the execution of which was denied by executant and same was doubtful, burden to prove could shift on person who had got benefit out of the said document‑Defendants who were beneficiaries of power of attorney had failed to prove signature of‑executant thereof by calling person in whose presence same was executed‑‑‑Said power of attorney which was not proved by producing marginal witnesses, identifier of executant and Sub‑Registrar, was not a valid document, and no authenticity could be attached to it. 2000 M L D 1117 Sana Ullah v. Muhammad Manzoor PLJ 1986 SC 526 (sic); Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 811 and Basri v. Abdul Hameed 1996 MLD 1123 ref.

Proof of tenancy-Plaintiff asserted their status as tenants of defendants through oral evidence comprising statement of one of plaintiffs and another witness coupled with admitted possession of plaintiffs and advance deposit of rent made by them-Such evidence was hardly sufficient to prove factum of tenancy-Appellate Court had rightly maintained that mere deposit of advance rent and possession of plaintiffs did not amount to creating of tenancy in respect of plot in question, in absence of rent/lease deed or order of allotment, PLD 2003 Lah.163

 ­Registration of sale‑deed‑‑Suit was resisted on the grounds that sale‑deed on basis of which plaintiffs claimed ownership in respect of property in dispute, being not registered document, could not be relied upon and that suit was barred by, limitation‑‑‑Sale consideration of property in dispute being less than Rs.100 was not compulsorily registrable ‑‑‑Presumption was attached to validity of sale‑deed as same was thirty years old‑‑‑Plaintiffs in their plaint had mentioned that cause  of action had accrued in their favour a week prior to filing of the suit when title to the property in dispute was denied to them‑‑‑Suit was not barred in circumstances‑­Concurrent findings of fact recorded , by Courts below regarding validity of sale of suit property in favour of plaintiffs not suffering from perversity, error of jurisdiction and material irregularity, could not be interfered with by High Court in exercise of its revisional jurisdiction.  2000 Y L R 2748

Remedies against Breach of contract:–Only two remedies are available to the aggrieved person, either to seek specific performance of the contract, or to seek for damages – Where specific performance cannot be granted under the law, as a substitute, the plaintiff is not entitled to file a suit for declaration or for that matter a suit for perpetual injunction, 2002 CLC 77 Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531; Kar. Shipyard Works v. Muhammad Shakir Sheikh 1993 CLC 330 : Shahid Mahmood v. KESC 1997 CLC 1936; Alvi Sons v. Government of East Pakistan PLD 1968 Kar. 222 and M. Farooq v. Suleman A.G. PanJwani PLD 1977 Kar. 88 ref.

Rent Matters:– Suit filed by plaintiff wherein he had sought declaration against order passed by Rent Controller that finding of relationship of landlord and tenant was illegal, inoperative, misconceived and void, was hit by provisions of S. 15(5), West Pakistan Urban Rent Restriction Ordinance, 1959 and plaint of suit ought to have been rejected in terms of O.VII, R. 11, C.P.C Suit being specifically barred under S. 15(5) of the Ordinance, plaint, was liable to be rejected.-P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil 647

Res – Judicata, principle of – Applicability – Earlier suit for declaration was rejected by Trial Court and appeal against the Judgment and decree was dismissed by Lower Appellate Court – Suit for specific performance of agreement to sell was filed subsequently – Validity – Bar contemplated under S.11, C.P.C. would not apply to subsequent suit for specific performance of contract and permanent injunction – Dismissal of appeal by the Lower Appellate Court had no bearing on the subsequent owing to distinct cause of action in both the matters.PLD 2002 Kar. 333 Plaintiff had earlier filed constitutional petition relating to property in question on the same cause of action, which is the subject matter of suit. Constitutional petition was disposed on the ground that complicated questions of fact being involved therein, same could not be decided in constitutional Jurisdiction in absence of evidence which exercise could not be undertaken in constitutional petition. Plaintiffs suit was thus not hit by the principle of res Judicata.  P.L.J.2000 Kar. 34 = 2000 MLD 895.

Revisional jurisdiction of High Court – Concurrent findings of fact by courts below – suit for declaration and permanent injunction was filed on the ground that the plaintiff was in possession of the suit land as Hissadar and the defendant had no concern with the suit land – Trial Court and Appellate Court concurrently dismissed the suit and appeal filed by the plaintiff – Validity – If the concurrent findings of fact by the courts below are the result of misreading of evidence on record, it becomes duty of high Court to set aside the same in exercise of its jurisdiction under S. 115, C.P.C – No error in reading the evidence had been committed by the Trial Court or Appellate Court – Plaintiff had failed to point out any material irregularity or illegality justifying setting aside the concurrent findings by the Courts below – High Court declined to interfere with the judgments and decrees passed by the Courts below – Revision was dismissed in limine.  PLD 2003 Pesh. 44

Revisional jurisdiction, exercise of‑‑‑Suit was resisted by defendant on grounds that identity of suit property was in dispute and that defendant had claimed title in respect of suit property by virtue of inheritance and on basis .of will‑‑­Validity‑‑‑Full description of suit. property had been given and identity of property had not been disputed by defendant either before Trial Court or before Appellate Court‑‑‑Such controversy could not be urged at revisional stage‑‑‑Defendant could not produce any document to prove his title in suit property by virtue of inheritance or on basis; of alleged Will‑‑‑Plaintiff on the contrary had succeeded in establishing her title in property resting on registered instrument‑‑‑Presumption as to genuineness, .correctness and authenticity of registered documents under Arts.85(5) & 129of Qanun‑e‑Shahadat, 1984 was not dispelled by defendant and oral assertion was not sufficient to rebut registered documents produced by plaintiff in proof of her title in respect of suit property‑‑‑Suit for possession and declaration was rightly decreed by Trial Court and Appellate Court‑‑‑Concurrent findings of Courts below could not be interfered with in revisional jurisdiction of High Court when no illegality was pointed out in concurrent finding of Courts below. 2002 M L D 1397 Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD 281 and Syed Akhtar Hussain Zaidi’s case 1988 SCMR 753 ref.

Suit for declaration – Plaintiffs had alleged that defendant unauthorisedly and fraudulently procured a registered power of attorney from their illiterate and Pardahnashin mother and on basis of said power of attorney defendant gifted away land of their mother in favour of his son vide attested mutation and had prayed that power of attorney in favour of the defendant and mutation of gift in favour of his son should be declared illegal and void – Suit was concurrently dismissed by the Courts below – Validity – Mother of the plaintiffs had her own children including sons – Not a word was said either in the pleadings or in the statement of defendant’s witness as to why mother of the plaintiffs would have gifted her land to the son of the defendant, especially when the defendant had not pleaded any love or affection for them and nor he had pleaded having rendered any service to that lady – No evidence was available on record to show that relationship of the lady with her children was strained – Both Courts below, in circumstances, had acted without lawful authority in dismissing concurrently suit filed by the plaintiffs – Only findings of fact recorded by the Courts below that mother of the plaintiffs did appoint defendant as an attorney and that he gifted away land to his son, were not enough to sustain the dismissal of the suit – Judgments and decrees of Courts below were set aside by the High Court in exercise of its revisional Jurisdiction. 2002 CLC 63 Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.  Restriction on transfer or alienation of more than l/4th of total land –  Plaintiff had claimed that he was owner of suit-land on the basis of mortgage deeds which as a matter of fact were sale-deeds, but were executed as mortgage deeds in view of law prohibiting sale for more than l/4th of total estate and in proof of his claim plaintiff had relied on S.5 of Azad Jammu and Kashmir Alienation of Lands Act, 1995 (B.K.) – Provision of S.5 of the Act had not provided that alienation of more than l/4th of land was prohibited in State of Jammu and Kashmir – Claim of plaintiff was rejected. Plaintiff had claimed that mortgage deeds in respect of suit-land as a matter of fact were sale-deeds, but were executed as mortgage deeds in view of law prohibiting sale for more than l/4th of total estate – Plea of plaintiff was rejected, in view of fact that conditions incorporated in mortgage deeds would not change their basic character. 2002 CLC 1121 Mir MatiulLah. and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998; Abdul Rehman and another v. Alif Din and others Civil Appeal No. 144 of 1998 and Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63 ref.

Suit for Declaration & Permanent Injunction. Whether petitioner not entitled to relief of injunction for not asking for specific performance. Petitioner is not entitled to decree for permanent injunction since he did not ask for relief of specific performance. Suit for declaration essentially based on agreement of partnership was completely misconceived and not maintainable at law. Grant of Declaration under section 42 and relief of injunction under section 54 of Specific Relief Act and exercise of Revisional Jurisdiction under section 115 C.P.C. is purely discretionary in nature. Petitioner not entitled to any relief.- P.L.J.1996 Kar. 172 = PLD 1996 Kar. 202.

Suit for declaration and injunction – Revisional Jurisdiction, exercise of – Appellate Court below in reversing findings of Trial Court had not only misread the evidence on the record, but had also shown ignorance of latest dictums of superior Courts – Appellate Court below exercised Jurisdiction not vested in it by setting aside and reversing well-reasoned Judgment of Trial Court without any legal and factual Justification – High Court, in exercise of its revisional Jurisdiction, set aside Judgment and decree of Appellate Court and restored that of Trial Court which was based on proper appreciation of evidence and was perfectly in conformity with the latest pronouncement of superior Courts 2001 CLC 1013

Suit for declaration and possession – Plaintiffs claiming to be owners of suit land having been purchased by their predecessor-in-interest, prayed for its possession and for declaration of their title and in alternative having same matured by prescription – Suit was decreed by Trial Court, but was dismissed by Appellate Court – High Court in revision set aside judgment of Appellate Court and restored that of Trial Court – Important piece of evidence in support of plaintiffs claim was copy of unregistered and unstamped agreement to sell – Photo copy of agreement had been exhibited in evidence without directing production of original document and without leave of court to lead secondary evidence after proof of loss or destruction of original agreement, thus, were guilty of withholding best available primary evidence – Since contents of such document purported to transfer absolute ownership of land, same required compulsory registration irrespective of fact, whether such document was agreement of sale or sale-deed – Such document being inadmissible in evidence, no presumption as to its correctness or validity could arise – Such document lacking necessary particulars in respect of identity of land and being unregistered would not transfer any valid title in favour of plaintiffs – High Court, without adverting to such aspect of the case, had proceeded to accept document as a valid deed of transfer being thirty years old – Such document was executed on 6-10-1947 – Mutation was recorded on 9-2-1957, but was cancelled on 25-2-1957 – Suit was filed on 3-12-1984 – Such inordinate delay on plaintiff’s part in bringing suit created doubts about bona fides of their acts and genuineness of their cause – Plaintiffs were not sure as to which of Khasra numbers was purchased by their predecessor – Construction of shops and production of rent notes executed by tenants was not sufficient to identify land – Entries in record of rights were showing predecessor of defendants as owners, whereas predecessor of plaintiffs as tenant-at-will – If possession of plaintiffs was permissive in nature, then same could not be in their own rights nor adverse to right/interest of real owners – Plaintiffs or their own rights nor adverse to right/interest of real owners – Plaintiffs or their predecessor had not remained in possession of land in their own right in pursuance of alleged agreement – No assertion of open and hostile title adverse to interest of defendants was made – Findings of High Court affirming that of Trial court were suffering from serious misconstruction of evidence and misconception of law as evidence on record had not been appreciated in its true perspective – Supreme Court accepted appeal, set aside judgments/decrees passed by Trial Court and High Court and restored judgment/decree passed by Appellate Court. PLD 2003 SC 410

Right of inheritance – Right of plaintiff in inheritance of her father being continuous right, filing suit for declaration under Art. 120 of limitation Act, 1908, to claim inheritance would start when right to sue accrued to plaintiff – Every entry in record of rights after every four years was denial of right of plaintiff and every denial would furnish plaintiff fresh cause of action, therefore, suit filed by plaintiff would be deemed to have been filed within limitation. PLJ 2004 Lah. 205

 Suit for declaration and possession:– Petitioners claimed to be owners and landlords of plot in dispute and on basis of entry in record of rights made in their favour, and possession, but Courts below concurrently dismissed their suit without taking such entry in consideration‑‑‑Entries %n Revenue Record prima facie were good evidence of title unless rebutted by some better evidence by other side‑‑‑Opponents had produced only oral evidence as against documentary evidence coming from public record produced by petitioners‑‑‑Entries in Revenue Records made since long in favour of petitioner, which remained unrebutted, could not be ignored‑‑‑Both Courts below having exercised their jurisdiction illegally and with material irregularity by not taking into consideration documentary evidence, like Revenue Record concurrent judgments of Courts below were set aside by High Court in exercise of revisional jurisdiction and case was remanded to be decided afresh after hearing parties in accordance with law. 1995 M L D 1458  Hazoor Bakhsh and others v. Abdul Rashid and others 1987 SCMR 1845 and Mir Haji Ali Ahmad Khan Talpur and others v. Government of Sindh and others PLD 1976 Kar. 316 ref.

Suit for declaration by plaintiff denying signatures on sale agreement—Amount of consideration received by plaintiff having been deposited by him in his Bank account, Bank official deposed that demand draft was deposited and credited in plaintiff’s Bank account—Plaintiff had bounden duty in presence of such evidence to discredit evidence of Bank official who had produced originals of Bank draft and deposit-slip from the record of Bank–­Signatures of plaintiff having been proved to be on sale agreement and amount of consideration having been proved to be received by him, Trial Court had rightly non-suited him—No interference was, therefore, warranted with findings of Trial Court. 1998 M L D 1908

Suit for declaration challenging gift:– Suit challenging gift executed by his mother in respect of her entire land in favour of defendant (her nephew) on the ground of fraud and misrepresentation contending that she being a ‘Pardanashin lady’ could not manage her land, but defendant was managing her land and he got a gift document executed in his favour pretending the same to be a document for management of land – Trial Court as well as Appellate Court dismissed the suit, but High Court in second appeal decreed the suit – Validity – Undisputed position emerging from statements of witnesses was that disputed land was located in the village, where defendant was residing and donor was not residing; that disputed land was being looked after by defendant, who had obtained the same on contract (Theka) from donor; that defendant after institution of suit had made serious attempts to get the matter compromised and offered one Murabba of land for withdrawal of suit; and that negotiation for compromise had taken place in presence of named persons – All said witness had supported each other on all material points and they stood firm to the test of cross-examination and nothing beneficial could be extracted from them – Even a remote suggestion had not been made to said witnesses that defendant as donee was owner of the land – No legal Justification existed to discard such evidence – Though evidence of said witnesses could not be discussed by High Court at length, but the same would have no substantial bearing on merits of the case as the conclusion derived by means of impugned Judgment was free from any infirmity – Statement of defendant’s witness that gift deed had been executed at the behest of mother of plaintiff with the consent of plaintiff was not believable as no sourceless person like the plaintiff would give his consent to his mother for donating entire land in favour of her nephew (defendant) – Had consent of plaintiff been obtained, then he would have signed the gift deed, which would have been a solid proof for its execution, genuineness and authenticity whereof could not be challenged – If gift was executed with consent of plaintiff, then what had prompted him to file the suit, which was indicative of the fact that plaintiff was not aware about the gift-deed and was not a consenting party – Mother (donor) could not have deprived the plaintiff (her son), when there was nothing on record to show that they were not on good terms or plaintiff was disobedient – Contents of gift-deed had never been read to executants thereof – Gift-deed was not valid one and its authenticity was not above board – Dishonest omissions in statement of defendant’s witness, also appeared to be self-contradictory – In view of defendant’s assertion that disputed land had been transferred by means of a valid gift, there was absolutely no lawful Justification to take the plea of adverse possession and the only irresistible conclusion of which would be that no such gift-deed had ever been executed – Neither any gift-deed whatsoever had been executed by mother of plaintiff nor conscious and unequivocal possession of land had been handed over to defendant as he could not adduce any convincing evidence in that regard –  Defendant had failed to prove the execution of gift-deed by producing credible evidence – Trial Court and Appellate Court had failed to examine the evidence on record in its true perspective – PLD 2002 S.C581-Muhammad Ashraf v. Bahadur Khan 1989 SCMR 1390 ref.

Suit for declaration of title on basis of agreement to sell. Agreement to sell could not create any interest in property in question, even if presumed to be genuine. Judgment, of Courts below is dismissing plaintiffs suit was, thus, in accordance with provisions of S. 42, Specific Relief Act, 1877. Plaintiffs only remedy was to file suit for specific performance of contract as envisaged by S. 18 of Specific Relief Act, 1877. Plaintiff, however, would be well within his right to compel vendee for enforcement of agreement but Court below did not consider such aspect of case. Courts below have given concurrent findings of fact that agreement to sell was executed by one of the defendant on his own behalf and on behalf of other defendants as their attorney and that he had received specified amount at the time of registration of agreement to sell. Such fact would bring plaintiffs case in area of equity, thus, Courts below were empowered to grant such relief as Justice of case demanded and for purpose of determining relief asked for whole of plaint must have been looked into so that substance rather than form should be examined as per dictates of 0. VIII, R. 7 C.P.C.. Impunged Judgments were set aside, case was remanded to trial Court with direction that permanent injunction be treated as suit for specific performance with permission to plaintiff to amend plaint subject to payment of specified amount. Trial Court after receiving amended pleadings from parties, framing additional issue, opportunity of evidence to parties, decide the suit in accordance with law and merits as suit for specific performance.  P.L.J.2000 Lah. 1362.

Suit for declaration on the basis of exchange.- Disputed property was alleged to be transferred to the plaintiff in exchange with the defendants – Plaintiff failed to produce any exchange deed duly signed by both the defendants – Trial Court, dismissed the suit whereas the Lower Appellate Court reversed the Judgment in appeal and decreed the suit – Defendant assailed the Judgment of Lower Appellate Court before High Court in its revisional Jurisdiction – High Court allowed the revision and the order of the Trial Court was restored – Validity – One of the defendants was not found to have transferred the suit land in exchange, the entire transaction of exchange was not capable of being given effect to, therefore, whole of the transaction was to be struck down – Findings recorded by High Court did not suffer from any legal infirmity calling for interference by Supreme Court – Leave to appeal was refused. 2001 SCMR 755

Suit for declaration on the basis of Gift – Suit-land being mortgaged, constructive possession was sufficient for satisfaction of necessary conditions required for a valid gift – Donor and donee also being owners in same Khewat, mortgagee had no legal right to challenge the gift deed – Contention that gift deed was not complete as possession was not delivered to the donee, was repelled because taking possession of subject-matter of gift by donee either actually or constructively would complete the gift. 2002 CLC 1121  Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah.4 ref.

Plaintiff challenged gift executed by his mother in respect of her entire land in favour of defendant (her nephew) on the ground of fraud and misrepresentation contending that she being a ‘Pardahnashin’ lady’ could not manage her land, but defendant was managing her land and he got a gift document executed in his favour pretending the same to be a document for management of land – Trial Court as well as Appellate Court dismissed the suit, but High Court in second appeal decreed the suit – Validity – Undisputed position emerging from statements of witnesses was that disputed land was located in the village, where defendant was residing and donor was not residing; that disputed land was being looked after by defendant, who had obtained the same on contract (Theka) from donor; that defendant after institution of suit had made serious attempts to get the matter compromised and offered one Murabba of land for withdrawal of suit; and that negotiation for compromise had taken place in presence of named persons – All said witness had supported each other on all material points and they stood firm to the test of cross-examination and nothing beneficial could be extracted from them – Even a remote suggestion had not been made to said witnesses that defendant as donee was owner of the land – No legal Justification existed to discard such evidence – Though evidence of said witnesses could not be discussed by High Court at length, but the same would have no substantial bearing on merits of the case as the conclusion derived by means of impugned Judgment was free from any infirmity – Statement of defendant’s witness that gift deed had been executed at the behest of mother of plaintiff with the consent of plaintiff was not believable as no sourceless person like the plaintiff would give his consent to his mother for donating entire land in favour of her nephew (defendant) – Had consent of plaintiff been obtained, then he would have signed the gift deed, which would have been a solid proof for its execution, genuineness and authenticity whereof could not be challenged – If gift was executed with consent of plaintiff, then what had prompted him to file the suit, which was indicative of the fact that plaintiff was not aware about the gift-deed and was not a consenting party – Mother (donor) could not have deprived the plaintiff (her son), when there was nothing on record to show that they were not on good terms or plaintiff was disobedient – Contents of gift-deed had never been read to executants thereof – Gift-deed was not valid one and its authenticity was not above board – Dishonest omissions in statement of defendant’s witness, also appeared to be self-contradictory – In view of defendant’s assertion that disputed land had been transferred by means of a valid gift, there was absolutely no lawful Justification to take the plea of adverse possession and the only irresistible conclusion of which would be that no such gift-deed had ever been executed – Neither any gift-deed whatsoever had been executed by mother of plaintiff nor conscious and unequivocal possession of land had been handed over to defendant as he could not adduce any convincing evidence in that regard –  Defendant had failed to prove the execution of gift-deed by producing credible evidence – Trial Court and Appellate Court had failed to examine the evidence on record in its true perspective – S.C dismissed the appeal in circumstances. PLD 2002 S.C 581 1989 SCMR 1390 ref.

Suit for declaration on the basis of inheritance:– Deceased had two wives, from first wife, he had three daughters and from second wife, he had one son and two daughters -Children from second wife of deceased were left out from inheritance mutation, whereas first wife of deceased had no male child, thus, petitioners being children of deceased’s brothers were found to inherit the property of deceased as residuaries –  Respondents being heirs of deceased from his second wife filed suit for declaration that they were entitled to inherit the property in dispute – Trial Court decreed the suit after considering the evidence and admission made by first wife that respondents were heirs of deceased from his second wife – Appellate Court set aside the decree and dismissed the suit – High Court accepted the revision petition and set aside the Judgment and decree of Appellate Court for having failed to take into consideration said admission which was a material piece of evidence – Validity – Statement of first wife of deceased had been rightly treated to be true on the principle that no one would make any admission against his own interest unless the same was true – Findings recorded by Trial Court and affirmed by High Court through impugned Judgment did not suffer from any illegality such as misreading or non-reading of evidence calling for interference by Supreme Court – Petition was dismissed and leave to appeal was refused in circumstances. 2002 SCMR 1173

Suit for declaration on the basis of Tamleeknama:– Plaintiffs had claimed that the suit land was given to them by their father through a Tamleeknama and defendants had no concern whatsoever with the land – Tamleeknama had been prepared after two years and four months of the purchase of stamp paper and had been pressed into service by filing suit after death of their father and possession of the land was not proved to have been handed over to the plaintiffs – Tamleeknama was a glaring example of crude device on the part of the plaintiffs to deprive the defendants who were rightful owners of land in dispute from their legal rights-Suit was rightly dismissed concurrently by Courts below after analysing evidence produced by the parties, 2001 MLD 1877

Suit for declaration on the basis of title-Plaintiffs stay application accepted by Trial Court was dismissed by Appellate Court-Legality-Matrial on record showed that plaintiff was inducted in suit property as a tenant by respondent, therefore, be could not challenge title of respondent (landlord) without first surrounding possession to him”, Plaintiff, thus, could hardly be deemed to possess prima facie case for grant of interim injunction,  PLD 2003 Lah.90

Thirty years’ old document – Presumption of correctness – determination – Suit-land was mortgaged with possession in favor of the predecessor-in-interest of plaintiffs in the years 1897 and 1998 – Plaintiffs claimed to be the owners of the suit-land on the basis of sale-deed dated 3-10-1900 executed in favour of their predecessor-in-interest – Trial Court decreed the suit in favour of the plaintiff presuming the sale-deed as correct under Art. 100 of Qanun-e-Shahadat, 1984 – Appellate court allowed the appeal and dismissed the suit to the extent that presumption attached to thirty years’ old document required corroborative evidence and the same was missing in the case – Judgment and decree passed by the Appellate court were maintained by the High Court in exercise of revisional jurisdiction – Validity – Appellate court had rightly come to the conclusion that had the sale-deed been available at the time of settlement of Bandobast, the same would have been produced and entries made in the  Record of Rights in favour of he plaintiffs in ownership column, therefore, was corroborative evidence as to genuineness of the document was missing – person of ordinary prudence if had purchased the land which was already in his possession as mortgagee would get the proper mutation entered and attested in his favour and his name entered in the ownership column – Plaintiffs kept quiet for a long time and were merely relaying upon an entry “Billa Laggan Bawaja Bey” in particular when they were already enjoying he status of mortgagee with possession was not sufficient corroborative evidence to raise presumption in the discretion vested in the court under art. 100 of the Qanun-e-Shahadat, 1984 in favour of genuineness being thirty years’ old document – Findings of fact recorded by Appellate court and affirmed by High Court as to the status of plaintiffs as owners of the land by virtue of the sale-deed were in accordance with law and had not been shown to have been based on misreading or non-reading of any material piece of evidence – Appeal was dismissed. PLD 2004 SC 325

Un-crossed evidence:– Plaintiff in support of his claim produced oral and documentary evidence – Defendants neither cross-examined plaintiffs witnesses nor themselves led any evidence in rebuttal – Trial Court dismissed suit, which decision was upheld by Appellate Court – Courts below had committed a grave legal error by overlooking the admitted position that evidence of plaintiff and his witnesses had gone unchallenged thus, in law the facts stated by them had to be taken as admitted by defendants – Cross-examination of plaintiff was reserved at the request of defendants’ Advocate, but they remained absent on the relevant date – Defendants apparently had chosen not to cross-examine plaintiff – Plaintiff while producing his documentary evidence had adopted his earlier deposition on record, which covered all material points of fact, but defendants did not opt to cross-examine him then – Alleged agreement to sell on the basis of which defendants claimed to have purchased disputed plot from plaintiff could not come on record – Courts below had put entire burden on plaintiff to prove alleged agreement to sell to be a forged document – Courts below had fallen into a grave mistake in overlooking the admitted fact that plaintiffs oral evidence had gone unchallenged as he was not cross-examined by defendants – Resultantly, plaintiffs’ version that such was not a sale agreement, but was a document executed in token of loan obtained by him from predecessor-in-interest of defendants on the condition that in case of non-payment, the amount would be adjusted towards rent payable by defendant in respect of disputed plot rented out to him, stood accepted for all practical purposes – Defendants had failed to prove the existence of alleged agreement to sell – Alleged agreement to sell was not a registered document and was not adequate by itself to confer a title upon defendants – No evidence on record to rebut such evidence of plaintiff beyond the averments in written statement, which alone were not rebuttal of plaintiffs’ evidence – Documentary evidence of plaintiff had been rejected as being managed documents without assigning any Justifiable reason therefor – Concurrent findings of Courts below were manifestly perverse, suffering from non-reading of evidence on material points and flagrant misreading of evidence on record – High Court was Justified in such circumstances to interfere with concurrent findings in exercise of Jurisdiction under S.115, C.P.C.  – High Court set aside impugned Judgments/decree and remanded the case to Trial Court for its decision in accordance with law on all highlighted points after affording ample opportunity to parties to produce evidence, if they desired so. 2002 CLC 1770 Nur Jehan Begum v. MuJtaba Ali Naqvi 1991 SCMR 2300; Messrs Shalimar Ltd., Kar. v. Raisuddin Siddiqui 1979 CLC 338; Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR 949; Muhammad Yousif v. Syed Wali Muhammad Shah 1994 CLC 132; Orient Match Company (Pvt.) Ltd. v. Banking Tribunal for Kar. and Sukkar 1996 CLC 1718; Khairul Nisa v. M. Ishaque PLD 1972 SC 25; Abdul Hakeem v. HabibulLah. 1997 SCMR 1139; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 144 ref.

Unregistered sale agreement:– Dismissal of suit for declaration claiming ownership of land in question, on the basis of unregistered sale agreement – property in question, being immovable property worth more than Rs.100/- could only be transferred by registered instrument of transfer – Mere agreement in writing did not create any right, title or interest in property irrespective of the fact that installment of the same might have been paid by petitioners – No illegality was committed by Appellate court in rejecting application seeking amendment of plaint for including additional plea of adverse possession.PLJ 2004 Lah. 51

Waiver. Concept of. Where suit was filed on 15.9.1994 and written statement was filed on 7.5.1997, application under O.VII, R. 11, C.P.C. for rejection of plaint having been filed after more than 2/1-2 years, objection in respect of multifarious would be deemed to have been waived.  P.L.J.1999 Kar. 218 = 1998 CLC 1425.

Written Notice before Institution of Suit.:– Suit was filed without first giving notice to defendant/Authority under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit could be filed against defendant/Authority except after expiry of sixty days’ written notice delivered to or left at the Office of Authority, suit filed by plaintiff was not maintainable. Mandatory provision of law having not been complied with plaint was rejected especially when plaintiff had not come up before Court with clean hands and had no cause of action against defendant/ Authority.  P.L.J.2000 Kar. 251 = PLD 2000 Kar. 161.

 

43. Effect of declaration

 

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.

Illustration

A, a Hindu in a suit to which B, his alleged wife, and her mother are defendants seeks a declaration that his, marriage was duly solemnized and an order for the restitution of his conjugal rights. The Court makes the declaration and order, C, claiming that B is his wife, then sues A for the recovery of B; The declaration made in the former suit is not binding upon C.

 

44. Appointment of receivers discretionary

 

The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.

Reference to Code of Civil Procedure. The mode and effect of his appointment, and his rights, powers, duties and liabilities, are regulated by the Code of Civil Procedure.

 

Ss 45 — 51 Omitted

 

Chapter VIII-Omitted by Ord. 27 of 1981, S. 3, Sch.2

 

52. Preventive relief how granted

 

Preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual.

 

 

53. Temporary injunctions

 

Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit, and are regulated by the Code of Civil Procedure, 19-08 (Act V of 1908)

Perpetual injunctions. A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit: the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the right of the plaintiff.

COURT DECISIONS

Scope – Where breach of obligation by defendant is so patent, that it floats on the surface of the record, causing immediate, pressing and irreparable injury to the plaintiff, the Court may, while exercising its powers under S.94 read with S.151. C.P.C., grant a status quo ante–In case of breach of contract which agreement is not even enforceable under the law, the Court cannot and should not exercise its Judicial discretion to create a situation, which has ceased to exist when the lis is commenced. 2002 CLC 77

54. Perpetual injunction when granted

Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.

When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases (namely):-

(a)    Where the defendant is trustee of the property for the plaintiff;

(b)   Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c)    Where the invasion is such that pecuniary compensation would not afford adequate relief;

(d)   Where it is probable that pecuniary compensation cannot be got for the invasion;

(e)    Where the injunction is necessary to prevent a multiplicity of judicial proceeding.

Explanation. For the purpose of this section a trade mark is property.

Illustrations

(a) A, lets certain land to B and B contracts not to dig sand or gravel there out. A may sue for an injunction to restrain B, from digging in violation of his contract.

(b) A trustee threatens a breach of trust. His co-trustees, if any. should, and the beneficial owners may. sue for an injunction to prevent the breach.

(c) The directors of a public company are about to pay a dividend out of capital or borrowed money. Any of the share-holders may sue for an injunction to restrain them.

(d) The directors of a fire and life insurance company are about to engage in marine insurances. Any of the share-holders may sue for an injunction to restrain them.

(e) A, an executor, through misconduct or insolvency, is bringing the property of the deceased into danger. The Court may grant an injunction to restrain him from getting in the assets.

(f) A, a trustee for B. is about to make an imprudent sale of a small part of the trust-property. B may sue for an injunction to restrain the sale, even though compensation in money would have afforded him adequate relief.

(g) A makes a settlement (not founded on marriage or other valuable consideration) of an estate on B and his children. A then contracts to sell the estate to C. B or any of his children may sue for an injunction to restrain the sale,

(h) In the course of A’s employment as a vakil, certain papers belonging to his client, B, come into his possession. A threatens to make these papers public, or to communicate their contents to a stranger. B may sue for an injunction to restrain A from so doing.

(i) A is B’s medical adviser. He demands money of B which B declines to pay. A then threatens to make known the effect of B’s communications to him as a patient. This is contrary to A’s duty, and B may sue for an injunction to restrain him from so doing.

(j) A, the owner of two adjoining houses, lets one to B and afterwards lets the other to C. A and C begin to make such alternations in the house let to C as will prevent the comfortable enjoyment of the house let to B. B may sue for an injunction to restrain them from so doing.

(k) A lets certain arable lands to B for the purposes of husbandry, but without any express contract as to the mode of cultivation. Contrary to the mode of cultivation customary in the district, B threatens to sow the lands with seed injurious thereto and requiring many years to eradicate. A may sue for an injunction to restrain B from sowing the lands in contravention of his implied contract to use them in a husband like manner.

(l) A, B and C are partners, the partnership being determinable at will. A threatens to do an act tending to the destruction of the partnership property. B and C may, without seeking a dissolution of the partnership, sue for an injunction to restrain A from doing the act.

(m) A, a Hindu widow in possession of her deceased husband’s property commits destruction of the property without any cause sufficient to justify her in so doing. The heir expectant may sue for an injunction to restrain her.

(n) A, B and C are members of an undivided Hindu family. A cuts timber growing on the family-property, and threatens to destroy part of the family house, and to sell some of the family utensils. B and C may sue for an injunction to restrain him.

(o) A, the owner of certain houses in [Karachi], becomes insolvent. B buys them from the official assignee and enters into possession. A persists in trespassing of land damaging the houses, and B is thereby compelled, at a considerable expense to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass.

(p) The inhabitants of a village claim a right of way over A’s land. In a suit against several of them, A obtains a declaratory decree that his land is subject to no such right. Afterwards each of the other villagers sues A for obstructing his alleged right of way over the land. A may sue for an injunction to restrain them.

(q) A, in an administration suit to which a creditor B, is not a party, obtains a decree for the administration of C’s assets. B proceeds against C’s estate for his debts. A may sue for an injunction to restrain B.

(r) A and B are in possession of contiguous lands and of the in underneath them. A works his mine so as to extend under B’s mine and threatens to remove certain pillars which help to support B’s mine. B may sue for an injunction to restrain him from so doing.

(s) A rings bells or make some other unnecessary notice so near house as to interfere materially and unreasonably with a physical comtort of the .occupier can be sued for an injunction restraining A from making the noise.

(t) A pollutes the air with smoke so as to interfere materially with the physical comfort of B and C. who carry on business in a neighbouring house. B and C may sue for an injunction to restrain the pollution.

(u) A infringes B’s patent. If the Court is satisfied that the patent is valid and has been infringed, B may obtain an injunction to restrain infringement.

(v) A pirates B’s copyright. B may obtain an injunction to restrain the piracy, unless the work of which copyright is claimed is libellous or obscene.

(w) A improperly uses the trade mark of B. B may obtain an injunction to restrain the user, provided that B’s use of the trade mark is honest.

(x) A, a tradesman, holds out B as his partner against the wish and without the authority of B. B may sue for an injunction to restrain A from so doing.

(y) A, a very eminent man, writes letters on family topics to B. After the death of A and B, C, who is B’s residuary legatee, proposes to make money by publishing A’s letters. D, who is A’s executor, has a property in the letters, and may sue for an injunction to restrain C from publishing them.

(z) A carries on manufactory and B is his assistant. In the course of his business, A imparts to B a secret process of value. B afterwards demands money of A, threatening, in case of refusal, to disclose the process to C, a rival manufacturer. A may sue for an injunction to restrain B from disclosing the process.

Court Decisions

Appreciation of evidence:– Appellate Court below in reversing findings of Trial Court had not only misread the evidence on the record, but had also shown ignorance of latest dictums of superior Courts – Appellate Court below exercised Jurisdiction not vested in it by setting aside and reversing well-reasoned Judgment of Trial Court without any legal and factual Justification – High Court, in exercise of its revisional Jurisdiction, set aside Judgment and decree of Appellate Court and restored that of Trial Court which was based on proper appreciation of evidence and was perfectly in conformity with the latest pronouncement of superior Courts. 2001 CLC 1013

Comfort and amenities of life:-Petitioners set up two heavy electric press and two electric motors for manufacturing footballs causing violent vibration shaking foundation of houses. Suit dismissed by trial Court, decreed by appellate Court holding that noise and vibration produced by football manufacturing machines interfered with civic amenities of respondents. Appeal against. Almost house of petitioner is at distance of 10 to 11 feet from house of respondent. Petitioner had installed two foot-ball pressing machines which were run by two electric motors. There is sufficient evidence on record that working of these machines created so much noise that it interfered with comfort and amenities of life in house of respondents/ plaintiffs. One of defendants, appeared as DW-1. He even could not controvert that aforesaid machines created vibrations and very abnormal noise. Appellate Court was eminently correct and Justified in coming to conclusion that noise and vibration created by machines installed in house of petitioners were so abnormal and intense that it constituted perennial actionable private nuisance. It caused physical and mental discomfort to occupants of house and affected structure of respondents/ plaintiffs house. View taken by appellate Court is Just, correct and does not suffer from any Jurisdictional or legal error calling for any interference in revisional-Jurisdiction.  P.L.J.2000 Lah. 807.

Concurrent findings:– where trial Court and Appellate Court concurrently dismissed the suit and appeal filed by the plaintiff –If the concurrent findings of fact by the courts below are the result of misreading of evidence on record, it becomes duty of high Court to set aside the same in exercise of its jurisdiction under S. 115, C.P.C – but no error in reading the evidence had been committed by the Trial Court or Appellate Court – Plaintiff had failed to point out any material irregularity or illegality justifying setting aside the concurrent findings by the Courts below – High Court declined to interfere with the judgments and decrees passed by the Courts below -. PLD 2003 Pesh. 44

            Documentary evidence‑‑­Statement with regard to total outstanding amount against the plaintiff as arrears was prepared by “Wasal Baki Nawees” which was a public functionary working under the control of the defendant‑Government‑‑‑Said document which was produced by the defendant Government‑itself and was admitted in evidence, would be binding on defendant in suit filed against it‑‑‑Defendant after relying upon said document, could not wriggle out of the vigour of the same. 2002 M L D 797

Evacuee Trust Properties:– Judgment & Decree passed by Trial Court on oath on Holy Quran set aside in appeal and case remanded for trial on merits. Any dispute in respect of property, like suit property, would be governed, by Act XIII of 1975 i.e. Evacuee Trust Properties (Management and Disposal) Act, 1975. As and when question arises as to whether evacuee property is attached to charitable, religious or educational trust or institution or not, shall be decided by Chairman whose decision shall be final and shall not be called in question in any court. Jurisdiction of Civil Court is barred u/S 14 of said Act. Order of trial court as well as appellate court are without Jurisdiction.  P.L.J.1996 Pesh. 29 1995 CLC 2028.

Restoration of possession:–Executing court had jurisdiction to pass any order for committing the contemner in prison by exercising jurisdiction under O. XXI, R. 32(1) & (2), C.P.C by restoring possession if it was proved that the order had been violated – Order for appointment of local commission was set aside and constitutional petition was disposed of accordingly. 2004 M L D 402

Instances for grant of Perpetual injunction:–  Perpetual injunction can be granted even in matters of violation of contract, breach of trust, infringement of copy right, patent, trade mark, easement, nuisance etc.. Exclusive right to use plaintiff’s photographs and T.V. images for advertising purposes was acquired by defendants under agreement for a specified period and after its termination, defendants may be entitled to restain all such advertisement materials upon which picture, image or photograph of plaintiff are printed and published but they are not entitled to use same for public consumption in any periodical, newspapers, T.V. or films after termination of such agreement. Prima facie, the plaintiff has established a case for grant of interim injunction in her favour. Plaintiff who claims to be a model, if refused interim injunction, may be deprived of her livelihood and, therefore, balance of convenience is also in her favour.  P.L.J.1997 Kar. 278 = PLD 1997 Kar. 57.

Interim injunction, grant of – When perpetual injunction cannot be granted, there is no question for the grant of temporary injunction. 2002 CLC 77

            Interim injunction in favour of the plaintiffs – Contention of the defendants was that as the plaintiffs had not sought declaration about their ownership and title in the suit whereas the other relief, in the form of injunction, possession and mesne profits being dependent upon ownership of plaintiffs, same could not be granted without a declaration about their ownership – Validity – Where plaintiffs had not sought declaration of their ownership in the suit, a consequential relief of injunction, permanent or interim, could not be granted to them – Due to the material omission in the prayer clause in the suit, the plaintiff, prima facie, had no case for grant of an interim injunction in their favour – High Court set aside the interim injunction granted in favour of the plaintiff. 2002 CLC 571

Limitation:–Suit for injunction to restrain defendant from initiation or continuing any arbitration proceedings in pursuance of contract dated 5-5-1996 – Contention of defendant was that suit was barred by time –  Suit had been filed in pursuance of notice dated 23-4-2002 by defendant to plaintiff for invoking arbitration clause in contract – Limitation would start from date of notice of defendant and not from date of contract – Suit, held, not barred by law. PLD 2003 Kar. 284

Perpetual injunction, grant of – – Suit for restraining the defendant from interference with the lawful possession of the plaintiff was decreed by the Trial Court and the Judgment and decree were affirmed by First Appellate Court – Second appeal against the Judgments and decrees passed by the two Courts below was dismissed by the High Court – Validity – S.C does not interfere in the conclusion of High Court which appears to be based upon adequate evidence both oral and documentary and is given in a detailed well-considered Judgment and is supported by cogent reasons and careful analysis of relevant material – Defendant failed to point out any misreading or non-reading of evidence nor there was any Jurisdictional or legal flaw in the Judgment and decree passed by High Court – Factual controversy in the present case had been resolved after proper appreciation of evidence.PLD 2002 S.C607  1986 SCMR 763; 1977 SCMR 511; 1972 SCMR 273 and  1971 SCMR 94 ref.

            Public passage – Dispute was with regard to use of suit land as public streets/passages –  Defendants claimed to have purchased the whole Khasra Nos. and no public street was included in the same – Trial Court, on the basis of evidence available on record, was of the view that the previous owners had abandoned the suit land for the purpose of public streets and the area used as streets was not included in. the sale-deed executed in favour of the defendants, hence, the suit was decreed – Appellate Court reversed the findings recorded by the Trial Court and allowed the appeal – Validity – Where suit land was established to be a passage for the residents dedicated by the previous owners and the defendants had not purchased the entire area of the Khasra No., the defendants had no right to convert the disputed land to their exclusive use by closing the streets – Appellate Court had erred in assuming that the plaintiffs were before the Court to enforce a right of easement when in fact they were seeking injunction against obstruction of public passage – Judgment and decree passed by the Appellate Court were set aside. 2002 CLC 318

Registration of Document:– When the sale mutations in dispute were made, consolidation proceedings were pending, alienation and mutation, in absence of registered sale-deed and also without obtaining necessary permission of the Consolidation officer were illegal – Record showed that no such general power of attorney was produced in the evidence before the Trial Court as such same being non-existent, the question of its validity would not arise at all -An document that purported to create right, title or interest in immovable property required compulsory registration – If the General power of attorney was in existence, the same should have been compulsorily registered and mere attestation of general power-of-attorney by the Notary Public was not sufficient to meet the requirement of law. PLD 2003 SC 159

            Remedies against of Breach of contract – – Only two remedies are available to the aggrieved person, either to seek specific performance of the contract, or to seek for damages – Where specific performance cannot be granted under the law, as a substitute, the plaintiff is not entitled to file a suit for declaration or for that matter a suit for perpetual injunction, 2002 CLC 77  Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531; Kar. Shipyard Works v. Muhammad Shakir Sheikh 1993 CLC 330: Shahid Mahmood v. KESC 1997 CLC 1936; Alvi Sons v. Government of East Pakistan PLD 1968 Kar. 222 and M. Farooq v. Suleman A.G. PanJwani PLD 1977 Kar. 88 ref.

Requirements of Notice:–Suit was filed without first giving notice to defendant/Authority under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit could be filed against defendant/Authority except after expiry of sixty days’ written notice delivered to or left at the Office of Authority, suit filed by plaintiff was not maintainable. Mandatory provision of law having not been complied with plaint was rejected especially when plaintiff had not come up before Court with clean hands and had no cause of action against defendant/ Authority.  P.L.J.2000 Kar. 251 = PLD 2000 Kar. 161.

Restraint of arbitration proceedings:–Suit filed by defendant claiming damages arising out of same contract was still pending – If defendant was able to prove its case, he would be suitably compensated for breaches, if any, committed by plaintiff – If parties were allowed to proceed before arbitrator, and ultimately suit of plaintiff was lowed and defendant was restrained from initiating or continuing with arbitration proceedings, then both parties would suffer irreparable loss as huge amount would be incurred on proceedings before arbitrator in foreign country – Proceedings before arbitrator could not be allowed to proceed simultaneously with proceedings of suit filed by defendant as same might result in conflicting judgments – If at any stage, defendant was found entitled to invoke arbitration clause – same could be done without any difficulty – Plaintiff would be exposed to inconvenience, if arbitration proceedings were allowed to proceed and then halted – Application under O. XXXIX, Rr. 1 & 2, C.P.C was granted and arbitration proceedings were restrained till disposal of suit. PLD 2003 Kar. 284

Suit for specific performance of agreement to sell and injunction – Transposition of defendant as plaintiff – Plaintiff made an offer not to press the suit subject to refund of earnest money paid by him – One of the defendants accepted offer and refunded earnest money subject to forfeiture in case he failed to find a suitable buyer for a higher value, within four months – Some defendants (other than that, who refunded earnest money) on their own filed amended plaint transposing themselves as plaintiffs seeking relief of mandatory injunction against defendant having refunded earnest money – Validity –  Entirely new facts had been pleaded in amended plaint, wherein relief was claimed only, against one defendant, who had refunded earnest money-Complexion, character and nature of the suit of specific performance and injunction had been changed to that of mandatory injunction – Right or interest available to original plaintiff/vendee had not been acquired by said defendants – Rather said rights and interest had been assumed and acquired by defendant, who while refunding earnest money to original plaintiff had undertaken to buy suit property either by himself or through his nominee – Defendant by doing so had stepped into the shoes of original plaintiff, thus, Court transposed him as plaintiff being vendee – Such transposition would not change character, complexion or nature of the suit for specific performance – Amended plaint filed by some defendant was rejected in circumstance. In amended plaint, pleadings in suit for specific performance were no more there, instead entirely new facts were pleaded, relief was directed against one defendant only. Complexion, character and nature of the suit for specific performance and injunction had been changed to that of mandatory injunction seeking implementation of orders passed in the suit. Had there been any claim/suit in respect of administration, partition and distribution of the estate of deceased pending inter se the parties, then of course transposition of some of the defendants as plaintiff in the matter could have been possible. There was no order for the transposition of other defendants as plaintiffs. Contention of said other defendants that when Court granted two weeks further time to file amended plaint, in fact it allowed transposition of parties could not be sustained for the reasons, firstly there was no earlier direction of filing amended plaint or order for transposition of parties; secondly even if it was presumed that by granting time to file amended plaint, transposition of parties was allowed, then there was nothing on record, whereby transposed parties were allowed to amend the pleadings to an extent that entire complexion, nature and character of suit was changed. Amended plaint filed by said defendants transposing themselves as plaintiff was rejected. Transposition of parties could be ordered by the Court both on application of any party or suo motu in case where Court was satisfied that any party to a proceedings had stepped into the shoes of another or interest of any party to the proceedings had either been acquired, transferred, assumed by way of assignment, devolution, transfer in any lawful manner only then transposition of such party could be ordered to avoid multiplicity of the proceedings to cut short the litigation provided nature, character and completion of suit was not changed. Defendants had not acquired any right or interest as vendee in the suit property which were available to original plaintiff/vendee. Rights and interest as vendee of the suit property were assumed and acquired by the other defendant who in fact while refunding the earnest money to original plaintiff undertook to buy the subject property either himself or through his nominee. By doing so in fact he had stepped into the shoes of original vendee/plaintiff. If any person was to be transposed, it was the defendant who could be transposed as plaintiff being vendee. By ordering transposition of said defendant as plaintiff, neither the character, complexion nor nature of the suit for specific performance would be changed. Under the circumstances, defendant was ordered to be transposed as plaintiff, name of original plaintiff was struck off and rest of the defendants were to remain defendants. PLD 2002 Kar. 542 Ahmad Zaman Khan, Barrister v. Government of Punjab through Collector, Multan and 2 others 1993 CLC 1327; Yousaf Aziz v. Aqeela Begum PLD 1978 Kar. 205 and Malik Mumtaz Ali v. Pakistan through Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others PLD 1971 Lah.395 ref.

Territorial Jurisdiction:– In a case for injunction to restrain defendant from initiating arbitration suit was filed at K after return of plaint initially filed at L – Notice for initiation of arbitration was received by plaintiff at K – Principal/registered office of defendant was at K – Held, Suit against defendant could be filed at K. PLD 2003 Kar. 284

55. Mandatory injunction

 

When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Illustrations

(a) A, by new buildings, obstructs light to the access and use of which B has acquired a light under the Limitation Act, 1908 (IX of 1908)], Part IV. B may obtain an injunction, not only to restrain A from going on with the buildings but also to pull down so much of them as obstructs B’s lights.

(b) A builds a house with eaves projecting over B’s land. B may sue for an injunction to pull down so much of the eaves as so project.

(c) In the case put as illustration (i) to Section 54, the Court may also order all written communication made by B, as patient to A, as medical advisor, to be destroyed.

(d) In the case put as illustration (v) to Section 54, the Court may also order A’s letter to be destroyed.

(e) A threatens to publish statements concerning B which would be punishable under Chapter XXI of the Pakistan Penal Code (XLV of 1860). The Court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B’s property.

(f) A being B’s medical advisor, threatens to publish B’s written communications with him, showing that B had led an immoral life. B may obtain an injunction to restrain the publication.

(g) In the cases put as illustrations (v) and (w) to Section 54, and as illustrations (e) and (f) to this section, the Court may also order the copies produced by piracy, and the trade-marks, statements and communications therein respectively mentioned, to be given up or destroyed.

Court Decisions

Scope – Where breach of obligation by defendant is so patent, that it floats on the surface of the record, causing immediate, pressing and irreparable injury to the plaintiff, the Court may, while exercising its powers under S.94 read with S.151. C.P.C., grant a status quo ante–In case of breach of contract which agreement is not even enforceable under the law, the Court cannot and should not exercise its Judicial discretion to create a situation, which has ceased to exist when the lis is commenced. 2002 CLC 77

            Principle – Such injunction cannot be granted by way of interim relief as a grant of such relief would be tantamount to a grant of final relief which would seriously prejudice the defendants. 2002 CLC 218  Muhammad Yaqub v. Muhammad NasrulLah. Khan and others PLD 1986 SC 497 and Firozuddin Ahmed v. Trading Corporation of Pakistan Limited and another 1987 MLD 124 ref.

            Unchallenged evidence:–Courts below had committed a grave legal error by overlooking the admitted position that evidence of plaintiff and his witnesses had gone unchallenged thus, in law the facts stated by them had to be taken as admitted by defendants – Cross-examination of plaintiff was reserved at the request of defendants’ Advocate, but they remained absent on the relevant date – Defendants apparently had chosen not to cross-examine plaintiff – Plaintiff while producing his documentary evidence had adopted his earlier deposition on record, which covered all material points of fact, but defendants did not opt to cross-examine him then – Alleged agreement to sell on the basis of which defendants claimed to have purchased disputed plot from plaintiff could not come on record – Courts below had put entire burden on plaintiff to prove alleged agreement to sell to be a forged document – Courts below had fallen into a grave mistake in overlooking the admitted fact that plaintiffs oral evidence had gone unchallenged as he was not cross-examined by defendants – Resultantly, plaintiffs’ version that such was not a sale agreement, but was a document executed in token of loan obtained by him from predecessor-in-interest of defendants on the condition that in case of non-payment, the amount would be adjusted towards rent payable by defendant in respect of disputed plot rented out to him, stood accepted for all practical purposes – Defendants had failed to prove the existence of alleged agreement to sell – Alleged agreement to sell was not a registered document and was not adequate by itself to confer a title upon defendants – No evidence on record to rebut such evidence of plaintiff beyond the averments in written statement, which alone were not rebuttal of plaintiffs’ evidence – Documentary evidence of plaintiff had been rejected as being managed documents without assigning any Justifiable reason therefor – Concurrent findings of Courts below were manifestly perverse, suffering from non-reading of evidence on material points and flagrant misreading of evidence on record – High Court was Justified in such circumstances to interfere with concurrent findings in exercise of Jurisdiction under S.115, C.P.C.  – High Court set aside impugned Judgments/decree and remanded the case to Trial Court for its decision in accordance with law on all highlighted points after affording ample opportunity to parties to produce evidence, if they desired so. 2002 CLC 1770 Nur Jehan Begum v. MuJtaba Ali Naqvi 1991 SCMR 2300; Messrs Shalimar Ltd., Kar. v. Raisuddin Siddiqui 1979 CLC 338; Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR 949; Muhammad Yousif v. Syed Wali Muhammad Shah 1994 CLC 132; Orient Match Company (Pvt.) Ltd. v. Banking Tribunal for Kar. and Sukkar 1996 CLC 1718; Khairul Nisa v. M. Ishaque PLD 1972 SC 25; Abdul Hakeem v. HabibulLah. 1997 SCMR 1139; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 144 ref.

 

    56. Injunction when refused

 

An injunction cannot be granted-

(a) to stay judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought;

(c) to restrain persons from applying to any legislative body’

(d) to interfere with the public duties of any department of the Federal Government, or any Provincial Government, or with the sovereign acts of a Foreign Government;

(e) to stay proceedings in any criminal matter;

(f) to prevent the breach of a contract the performance of which would not be specifically enforced.

(g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;

(h) to prevent a continuing breach in which the applicant has acquiesced;

(i) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(j) when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court;

(k) where the applicant has no personal interest in the matter.

Illustrations

(a) A seeks an injunction to restrain his partner B, from receiving the partnership debts and effect. It appears that A had improperly possessed himself of the books of the firm and refused B access to them. The Court will refuse the injunction.

(b) A manufactures and sells crucibles, designating them as ‘patent plumbago crucibles,’ though in fact they have never been patented. B pirates the designation. A cannot obtain an injunction to restrain the piracy.

(c) A sells an article called ‘Mexican Balm, ‘ stating that it is compounded of diverse rare essences, and has sovereign medicinal qualities. B commences to sell a similar article to which he gives a name and description such as to lead people into the belief that they are buying A’s Mexican Balm. A sues B for an injunction to restrain the sale. B shows that A’s Mexican Balm consists of nothing but scented hog’s lard. A’s use of his description is not an honest one and he cannot obtain an injunction,

Court Decisions

Bar for grant of permanent injunction:–Contract for sale of goods was not capable of being specifically performed, therefore, permanent injunction in terms of S. 56, Specific Relief Act, 1877 could not be issued. Where permanent injunction could not be issued, interim injunction also would not be issued. In relation to contract of sale of goods, unless otherwise shown and established, compensation in terms of money would be adequate consideration.  P.L.J.1998 Kar 245 = PLD 1998 Kar. 1.

Contract between parties was of category of contracts which could not be specifically enforced and fell within the mischief of Cl. of S. 21 of the Specific Relief Act, 1877 and bar of injunction as provided in S. 56 of the Act was attracted. Plaintiffs could not make out prima facie case for grant of temporary injunction pending decision of suit, in so far as third party interest had been created in property in question as per plaintiffs’ own admission and their failure to implead such persons as party in their suit. Balance of convenience, thus,, would not be in favour, of plaintiffs. Plaintiffs having themselves estimated damages/losses suffered by them on account of breach of agreement in the sum of specified amount, no case for temporary injunction was made out. Where relief asked for could be measured in terms of money and plaintiffs themselves having  claimed specified amount as damages in their suit, grant of temporary injunction respecting land in question was not warranted, and, hence, refused.  P.L.J.1998 Kar. 822 = 1998 CLC 441.

Where share of defendants was admittedly undivided, even if it was proved that they had agreed to .sell property, such agreement would be deemed to be void. Plaintiffs having failed to make out prima facie case for grant of temporary injunction. Plaintiffs, however, being tenants they would not be dispossessed/ejected otherwise than in due course, of law. Relief claimed could not be granted for no injunction could be granted to stay Judicial proceedings in terms of S. 56, Specific Relief Act, 1877.  P.L.J.1999 Kar. 213 = 1998 CLC 1515.

Only legal points and not factual aspect could be discussed in revision. Factual aspect of case having already been decided by concurrent Judgments of Courts below could not be agitated before Revisional Court. Grounds stressed before ‘High Court were almost the same which were argued before Appellate Court. No legal flaw in Judgment of Appellate Court had been pointed out by petitioner. Petitioner’s contention that Appellate Court did not comply with provision of O.XLI, R. 31 C.P.C. was without force, therefore, the same could not warrant interference of High Court. Appellate Court while upholding trial Court’s -findings considered evidence issuewise. Petitioner, thus, could not point out any Jurisdictional defect in impugned Judgment nor-he could show any misreading of relevant evidence or overlooking of any important evidence. Ownership of disputed property being involved in the case, evidence had been evaluated by both Courts below. Dispute relating to ownership of property in question, was question of fact and the same was determinable on thorough analysis of evidence led by parties. Evidence on record having been evaluated by Appellate Court, Scope of revisional Jurisdiction was limited and no interference was Justified unless patent illegality, want of Jurisdiction, mis-exercise of authority or material irregularity could be disclosed. Concurrent findings of fact recorded by Courts below did not warrant interference in circumstances.-P.L.J.2000 Qta. 18 = PLD 2000 Qta. 66

            Principles of estoppel:– Urban Rent Restriction Ordinance, 1959, S. 13 and Criminal Procedure Code, 1898 S. 145. Plaintiff had undertaken before Magistrate in proceedings under S. 145, Cr.P.C. that he would be bound by decision of Rent Controller. Rent Controller had found plaintiff to be tenant. Prayer for injunction (in presence of such statement) in terms of S, 56(J), Specific Relief Act, 1877 would be hit by principles of estoppel. Trial Court had correctly dismissed plaintiffs suit.  P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil 647

S.56(i) of Specific Relief Act:– Contract of supply of goods was revoked by the appellant – To enforce the contract, the respondent filed suit for declaration and permanent injunction — Where the respondent was simply purchasing goods from the appellants on the payment of the price and against the delivery of the goods, such dealing between the parties was squarely covered by S.5 of Sale of Goods Act, 1930 – If the appellants, even for malafide reasons, had refused to sell the goods to the respondent, at the best, the respondent could sue the appellant for damages, but no specific enforcement of the agreement could be obtained under the decree of the Court, as per the provisions of S.56(i) of Specific Relief Act, 1877 read with explanation to S.12 of the Act. 2002 CLC 77

Embargo on junction against Government:– Grant or refusal of temporary injunction in accordance with law would be based on principles as to: whether plaintiff had prima facie good case; whether balance of convenience was in favour of grant of injunction; and whether plaintiff would suffer irreparable loss, if injunction was refused‑‑‑Two Courts below and the High Court had not comprehended such principles including the one whether plaintiff had prima facie good case‑‑‑Retirement of plaintiff having already become effective before issuance of injunction by Trial Court, interim injunction should not have been issued ‑‑‑Even otherwise, no irreparable loss would have been caused to plaintiff for non‑issuance of same, for, in case of his success he would have been considered as still in Government service entitling him to recover his emolument from Government‑‑‑High Court while deciding case in favour of plaintiff had agreed with two Courts below without having recourse to S. 56(d), Specific Relief Act, 1877, which placed embargo on powers of Court in granting temporary injunction against Government Departments without resort being had to other weighty and relevant consideration in the grant or refusal of temporary injunction‑‑‑Petition for leave to appeal was converted into appeal and impugned orders passed by Courts below including the High Court granting and upholding order of status quo ante, were set aside. 1998 S C M R 376

 

57. Injunction to perform negative agreement

 

Notwithstanding section 56, clause (f), where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: provided that the applicant has not failed to perform the contract so far as it is binding on him.

Illustrations

(a) A, contracts to sell to B for Rs. 1,000 the goodwill of a certain business unconnected with business premises, and further agrees not to carry on that business in Karachi, B, pays A, the Rs. 1,00 but A, carries on the business in ‘[Karachi]. The Court cannot compel A to send his customers to B, but B may obtain an injunction restraining A, from carrying on the business in ‘[Karachi].

(b) A, contracts to sell to B the goodwill of a business. A then sets up a similar business close by B’s shop and, solicit his old customers to deal with him. This is contrary to his implied contract, and B may obtain an injunction to restrain A, from soliciting the customers, and from doing any act whereby their goodwill may be withdrawn from B.

(c) A, contracts with 5 to sing for twelve months at B’s theatre and not to sing in public elsewhere. B, cannot obtain specific performance of the contract to sing, but he is entitled to an injunction restraining B, from singing at any other place of public entertainment.

(d) B contracts*with A that he will serve him faithfully for twelve months as a clerk. A is not entitled to a decree for specific performance of this contract. But he is entitled to an injunction restraining B from serving a rival house as clerk.
(e) A contracts with B that, in consideration of Rs. 1,000 to be paid to him by B on a day fixed, he will not set up a certain business within a specified distance. B fails to pay the money. A cannot be restrained from carrying on the business within the specified distance.

 

 

Enactments Repealed

 

Rep. By the Amending Act, 1891 (XII of 1891

 

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