Tanveer Mehmood Awan vs Atif Haseeb etc.

Stereo.HCJDA 38.

Judgment Sheet

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

CIVIL REVISION NO.950-D of 2015

TANVEER MEHMOOD AWAN

Versus ATIF HASEEB and another

JUDGMENT

Date of Hearing: 01.10.2025 Applicant by: Mr. Muhammad Ilyas Sheikh, Advocate.

Respondent No.1 by: Malik Muhammad Kabir, Advocate.

Respondent No.2 by: Ex-parte.

MIRZA VIQAS RAUF, J. This revision application emerges from a suit for specific performance instituted by respondent No.1 (hereinafter referred to as “respondent”) wherein he asserted that the applicant being owner of the suit land agreed to sell his property to which effect agreement was reduced into writing on 24th November, 2003. In terms of the sale agreement total sale consideration was fixed as Rs.3,40,000/- out of which Rs.10,000/- was paid in cash to the applicant whereas a motorcar amounting to Rs.1,60,000/- was also handed over to him as part of sale consideration. It is asserted that in pursuance whereof, possession of suit land was also handed over to the respondent. As per averments contained in the plaint, the respondent then paid the major part of sale consideration through different cheques but when he asked the applicant to receive the remaining sale consideration, he refused and instead transferred the suit land to respondent No.2. Suit was resisted by the applicant being defendant, who though admitted the execution

of agreement but stated that as the respondent failed to pay the sale consideration to him, so he returned the part of sale consideration received by him and transferred the suit property to respondent No.2. The respondent No.2 also contested the suit and submitted that she is bona fide purchaser. From the divergent pleadings of the parties multiple issues were framed and evidence was recorded. On completion of evidence suit was decreed and the respondent was held entitled to recover Rs.3,60,000/- from the applicant as alternate specific remedy for breach of agreement. Feeling dissatisfied, the applicant preferred an appeal before learned District Judge, Attock whereas the respondent filed cross objections. Both were consolidated and decided through judgment and decree dated 29th September, 2015 whereunder appeal of the applicant was dismissed and while allowing the cross objections of the respondent, his suit was decreed as prayed for subject to deposit of remaining sale consideration, hence this application under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “C.P.C.”).

2.Learned counsel for the applicant submitted that the applicant was ever willing and ready to perform his part of agreement and it was the respondent (vendee), who has failed to abide the terms of agreement. Learned counsel contended that overwhelming evidence was produced by the applicant in support of his case but the respondent was held entitled for Rs.3,60,000/- by the trial court without adverting to the material pieces of evidence. Learned counsel argued that learned District Judge while adopting a contra view allowed the cross objections of the respondent in an illegal and unlawful manner.

3.Conversely, learned counsel for the respondent submitted that the respondent has though successfully proved the transaction of sale and payment of sale consideration but the trial court has not properly adverted to these material pieces of evidence while declining the relief of specific performance. It is contended with vehemence that learned District Judge rightly interfered with the judgment of trial court and decreed the suit as prayed for, which judgment is unexceptionable.

4.Heard. Record perused.

5.Suit was rested on agreement to sell (Exhibit-P1). As per claim of the respondent in furtherance of the agreement to sell he paid an amount of Rs.3,10,000/- out of total sale consideration of Rs.3,40,000/- by various modes i.e. cash, car and cheques. On the other hand, the applicant while submitting his written statement though admitted the execution of agreement but not in clear words. He, however, conceded that as a part of sale consideration the respondent handed over him a car but it was since not in the name of respondent so returned to him. Both the sides produced their respective evidence in the process of which it has come on the record that the respondent succeeded in proving the execution of agreement to sell and payment of part of sale consideration.

6.Leaving aside unnecessary discussion to this effect it would be advantageous to straightaway advert to the statement of applicant, who appeared as DW1. The relevant extract from the statement of applicant is reproduced below :-

ت وکاینپاجدیئاددرسوطررپلقتنم2"۔۔۔۔اعمدئہذموکرہدمیعےنوخدوتڑااھت۔ںیمےندماعہیلعربمن یکیھت۔وجہکباہب دبلیھت ںیم ےندمیع وکارایضدتموعہیاکہضبق ہندبااھت۔اورہنیہاُسےنواہں رپ ت وکیئ اینبدںی انبںیئ ںیھت۔ دمیع اک ومفق ادایگیئ رمق طلغ ےہ۔۔۔۔ہی درس ےہ ہک ااٹسمپ پ ت رمہلملکیتیوخددمیعوکدےنیاکوسداایک۔16 ےکاطمقبںیمےنارایضدتموعہیدعتادیEx-P1 ت ت روےپ ںیم ےط بابا اھت۔ ہی طلغ ےہ ہک وبق رحتیر ااٹسم دمیع ےن ےھجم پ3،40000/- ہی وسدا ت ت ت دعد اکر1 روےپ دقن ادا ےیک ےھت۔ ہی درس ےہ ہک وبق رحتیر ااٹسم ںیم ےن1،70000/- ت - ووصل یک یھت۔ ہی درس ےہ ہک ذموکرہ اکر یک تمیق اطمقب ااٹسمSTA/3111 ربمنی ت ےک اطمقب رحتیر ااٹسمEx-P1 روےپ یھت۔ ہی درس ےہ ہک ااٹسم1،60000/ روےپاقبباےھت۔۔۔۔1،70،000/-روےپووصلوہےئاور1،70،000

From the bare perusal of the statement of the applicant himself there remains no cavil that he entered into an agreement to sell with the respondent and in furtherance thereof, he received Rs.1,70,000/- as part of sale consideration. It is though stance of the applicant that he returned the car to the respondent on account of defect in his title but an iota of evidence is not available to this effect. To prove the payment of sale consideration the respondent examined Irshad Farooq Supervisor United Bank Limited (UBL) Attock City as PW4.

From whose statement it is crystal clear that through cheque further Rs.10,000/- was also paid to the applicant. Thus in toto the applicant received an amount of Rs.1,80,000/- from the respondent. This was the opinion of the trial court as well, which is undoubtedly founded on proper appraisal of evidence. The respondent however, failed to pay the remaining sale consideration as a result of which the applicant further transferred the suit land to respondent No.2, who while resisting the suit pleaded her bona fide and succeeded to establish the same, so her rights are protected under Section 41 of the Transfer of Property Act, 1882.

7.Section 22 of the Specific Relief Act, 1877 ordains that the relief of specific performance is discretionary relief and it depends upon the judicial conscious of the court, either to grant or refuse the same to the person claiming right under agreement. The court is empowered to refuse the relief of specific performance even in the cases where the agreement was validly proved by the plaintiff. The plaintiff cannot claim the relief of specific performance as a matter of right. Law is well settled that agreement to sell does not confer any right to the proposed vendee in the property, subject matter of the said agreement. At the most agreement to sell equips the vendee(s) with a remedy to institute a suit for specific performance for the enforcement of such agreement. The respondent was obliged to establish his alleged right in the suit land in the light of alleged agreement to sell by leading cogent and convincing evidence. The respondent though succeeded in establishing the part payment but total sale consideration was yet to be paid which casts serious aspersions on his claim. The relief of specific performance even otherwise is discretionary and it depends upon the judicial conscience of the court, either to grant or refuse the same to the person(s) claiming right under agreement to sell. The court is empowered to refuse the relief of specific performance even in the cases where the agreement to sell was validly proved by the plaintiff(s). The plaintiff(s) cannot claim the relief of specific performance as a matter of right. Reliance in this respect, if needed, can be placed on Mrs. ZAKIA HUSSAIN and another versus Syed FAROOQ HUSSAIN (PLD

2020 Supreme Court 401), Sheikh AKHTAR AZIZ versus Mst. SHABNAM BEGUM AZIZ (2019 SCMR 524), Hafiz MUHAMMAD IQBAL versus GUL-E- NASREEN and others (2019 SCMR 1880) and FARZAND ALI and another versus KHUDA BAKHSH and others (PLD 2015 Supreme Court 187).

8.In the wake of above discussion, when it is proved on the record that Rs.1,80,000/- was received by the applicant as part of sale consideration and there is only a small peccadillo on the part of respondent, he is entitled for the return of his amount. While forming above opinion one can also not loose sight of the fact that there is notable hike in the inflation, so in order to avoid any prejudice to any of the parties to the lis, I deem it appropriate to direct the applicant (vendor) to pay sum of Rs.11,00,000/- as additional consideration in view of devaluation of currency as he has utilized the said amount during this period. In this context, I am fortified with the judgment of the Supreme Court of Pakistan in the cases of Mst. MEHMOODA BEGUM versus Syed HASSAN SAJJAD and 2 others (PLD 2010 Supreme Court 952) and MUHAMMAD HUSSAIN and others versus Dr. ZAHOOR ALAM (2010 SCMR 286).

9.For the foregoing reasons, the instant petition is partly allowed, while modifying the impugned judgment and decree dated 29th September, 2015 passed by learned District Judge, Attock, as a result thereof, suit instituted by the respondent shall stand partly decreed holding him entitled for the amount of Rs.11,00,000/- from the applicant in addition to the amount of Rs.1,80,000/- within two months from today and in case of failure to pay said amount within specified period to the respondent, the applicant shall be liable to pay interest at the prevailing bank rate. No order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

APPROVED FOR REPORTING

JUDGE

Shahbaz Ali*