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
court*fee 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 devaluafcion
"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 appealJudgment
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 producedMarginal
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
Re*assessment 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, Qanune-Shahadat
Order,1984, Petitioner has not proved his case in terms of S. 79 ofQanun-e-Shahadatin as much as be
failed to produce two attesting witnesses in terms ofS, 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 saledeed-
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 claiming 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 MLD 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 suitland-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
(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
court*fee 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 devaluafcion
"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 appealJudgment
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 producedMarginal
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
Re*assessment 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, Qanune-Shahadat
Order,1984, Petitioner has not proved his case in terms of S. 79 ofQanun-e-Shahadatin as much as be
failed to produce two attesting witnesses in terms ofS, 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 saledeed-
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 claiming 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 MLD 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 suitland-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
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