Civil Revision 151 of 1990, decided on 16th September, 1990.

1991 M L D 532
[Lahore]
Before Muhammad Munir Khan, J
Khalifa MURAMMAD YAQUB–Petitioner
Versus
MUHAMMAD SIDDIQUE and 3 others–Respondents

Civil Revision 151 of 1990, decided on 16th September, 1990.

Specific Relief Act (I of 1877)

—-S.12—Civil Procedure Code (V of 1908); S.115—Suit for specific performance of agreement of
sale—Courts below had concurrently found that plaintiff had failed to perform his part of contract
within stipulated time and that conduct of plaintiff seemed to be mala-fide—Plaintiff had failed to
controvert observation of Trial Court as to his conduct—Record showed that .no case had been made out
for specific performance of agreement of sale—There being no illegality or material irregularity in
judgments, and decrees of Courts below, revision was dismissed.

 

Shamim Abbas Bokhari for Petitioner.

ORDER

The facts leading to this revision briefly are that Khalifa Muhammad Yaqub petitioner/plaintiff agreed to
purchase 8 marlas of land for Rs.8,000 from Muhammad Siddiq respondent. He paid Rs.2;000 as earnest
money on 26-4-1974. It was agreed, that he will get the sale-deed registered within 4 months and if
Muhammad Siddiq ,defendant/respondent resiles, he will pay Rs.4,000 to the plaintiff as damages. The
petitioner approached the respondents for the registration of sale in his favour but he refused. Instead on
14-1-1975, he sold the disputed land to Muhammad Shari respondent. So, the petitioner/plaintiff filed a
suit for Specific Performance of Contract and also for declaration to the effect that the sale by
Muhammad Siddiq respondent/defendant in favour of Muhammad Shag respondent was illegal, void
and inoperative upon his rights. During the pendency of the suit Muhammad Shafi transferred the land
to Luqman Ahmad and then Luqman Ahmad rented it to Abdul Hameed, therefore, the subsequent
vendees were impleaded as defendants. The suit was resisted whereon 11 issues were framed. The
parties led evidence. The trial Court -dismissed the suit on 17-3-1987. The appeal filed by the
petitioner/plaintiff against this judgment and decree was dismissed by the learned Additional District
Judge on 30-10-1989, hence this revision.

2. Learned counsel for the petitioner contended that the time was the essence of the contract and the
petitioner validly tendered the balance amount to Muhammad Siddiq respondent No.1.within time and
as such he was not estopped to bring the suit and that defendant No.2 was not a bona fide purchaser,
inasmuch as, he fully knew about agreement to sell already entered between the petitioner/plaintiff and
Muhammad Siddiq respondent No.1 and that the remaining respondents having purchased the suit land
during the pendency of the suit cannot be termed as bona fide purchaser of the suit land for value
without notice.

3. I have considered the submissions made by the learned counsel with care. I have not been able to
persuade myself to agree with him. I find that the Courts below have applied their conscious mind to the
relevant evidence and given sound and cogent reasons in support of the conclusions arrived at by them:
The Courts below have concurrently found that the petitioner had failed to perform his part of contract
within the time stipulated in the agreement. In para 10 of its judgment, the trial Court has observed that:

“Agreement between the parties was executed on 26-4-1974 and it was stipulated that defendant No.1
will execute registered sale-deed in favour of the plaintiff within four months and if he will fail he will
pay Rs. 2,000 alongwith token money as damages and if the plaintiff will fail to pay the remaining price
of land his token money will be forfeited. The plaintiff has not- produced any evidence that he tendered
money within time stipulated between the parties. No notice was given to defendant No.1 for execution
of sale-deed. Money was not tendered to the defendant No.1 as sale price within the prescribed time. It
is also admission on the part of plaintiff that he has not asked for the return of token money but he has

been stressing on payment of remaining Rs. 25,000. The amount due from the plaintiff was six thousand
which he has not tendered to defendant No.1 nor he has served any notice to the defendant for execution
of sale-deed in his favour. It is also admission on the part of the plaintiff that he has not restrained the
defendants from raising construction over- the disputed land nor he has informed them about the suit
pending in the Court. The conduct of the plaintiff seems to be mala fide. The plaintiff has failed to fulfil
his part of agreement within time stipulated between the parties which was essence pf the contract.”

The learned counsel has not been able to controvert the aforesaid observations made by the learned trial
Court. The learned Appellate Court was also of the view that the petitioner/plaintiff had failed to
perform his part of the contract within time stipulated between the parties. I find that on his own
showing the plaintiff had not tendered the balance amount of Rs. 6,01)0. Instead he tendered Rs. 2,500
to respondent No. 1. This being the position, no exception can be taken to the findings of the Courts
below. Furthermore, the relief in a suit for Specific Performance of Contract is discretionary -in nature.
It was agreed between the parties that if any party to the contract will fail to perform his part of contract,
he will be penalized and in case defendant No.l fails to get the sale-deed registered in favour of the
plaintiff, he will pay Rs. 4,OOOito the plaintiff as damages so the pecuniary compensation for the nonperformance
of part of defendant was accepted by the plaintiff, therefore, specific performance could not
be enforced under section 12(c) & (d) of Specific Relief Act. I do not see any illegality or material
irregularity in the impugned judgments and decrees. The submissions made by the learned counsel are
devoid of force and substance. So the revision is dismissed in limine.

 

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