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 sellDiscrepancies
in
their
statement,
with
regard
to
their
relationship
with
plaintiff
was
apparent
on
record-Marginal
witnesses
had
contradicted
each
other
in
their
statementsAgreement
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 retendered
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 28-81995
-
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 favor 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 favor of plaintiff,therefore,wrong and illegal conclusion had been drawn
by First Appellate Court Judgment entand 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
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 sellDiscrepancies
in
their
statement,
with
regard
to
their
relationship
with
plaintiff
was
apparent
on
record-Marginal
witnesses
had
contradicted
each
other
in
their
statementsAgreement
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 retendered
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 28-81995
-
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 favor 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 favor of plaintiff,therefore,wrong and illegal conclusion had been drawn
by First Appellate Court Judgment entand 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
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