Muhammad Nadeem vs Anees Akhtar

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN

BENCH, MULTAN

JUDICIAL DEPARTMENT

Civil Revision No.581-D of 2018 Muhammad Nadeem

Versus

Anees Akhtar

JUDGMENT

Date of hearing: 16.04.2026.

Petitioner by: Ch. Muhammad Sadiq, Advocate.

Respondent by: Mr. Javaid Ahmad Khan, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant revision petition, the petitioner has assailed the judgments and decrees dated 01.06.2016 and 07.03.2018, passed by the learned Civil Judge, Sahiwal and learned Additional District Judge, Sahiwal, respectively, whereby the suit for specific performance of an agreement to sell, filed by the respondent, was concurrently decreed.

2.Briefly stated, the respondent instituted a suit for specific performance on the basis of an alleged oral agreement to sell dated 14.12.2008, asserting that the petitioner agreed to sell the suit property for a total consideration of Rs.1,85,600/- and received Rs.1,00,000/- as earnest money against a receipt. It was further averred that the respondent remained ready and willing to perform her part of the contract, but the petitioner avoided execution of the sale deed, compelling her to institute the suit.

The petitioner contested the suit by filing a written statement, wherein he categorically denied execution of any agreement to sell, receipt of any earnest money, and the authenticity of the alleged receipt. Upon completion of trial, the learned Civil Judge decreed the suit vide judgment & decree dated 01.06.2016, which were

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subsequently affirmed by the learned Appellate Court vide judgment & decree dated 07.03.2018. Hence, this revision petition.

3.Learned counsel for the petitioner contends that the entire case of the respondent rests upon an alleged oral agreement, which has not been proved through cogent, consistent, and confidence-inspiring evidence. He further argues that the learned Courts below have placed undue and legally impermissible reliance upon the statements of the parties recorded on 26.11.2014 before the learned Appellate Court during interlocutory proceedings, treating the same as conclusive proof of agreement. He further argues that material contradictions in the respondent’s version, particularly regarding the amount of earnest money, have been ignored, while essential ingredients of a valid contract and readiness and willingness have not been established. He further submits that the suit was otherwise barred by limitation. In support, he has referred to Zulfiqar and others v. Shahdat Khan (PLD 2007 Supreme Court 582), Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914), Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) and Allah Ditta and 3 others v. Imam Din and another (2017 MLD 1195).

4.Conversely, learned counsel for the respondent supports the impugned judgments and submits that the same are well-reasoned and based on proper appreciation of evidence, thus not calling for interference in revisional jurisdiction.

5.Arguments heard. Record perused.

6.It is the case of the respondent that the alleged agreement to sell is oral in nature. It is settled law that a claim for specific performance based on an oral agreement requires strict proof of its essential ingredients, namely offer, acceptance, consideration, and continuous readiness and willingness, through clear, consistent, and independent evidence, as the standard of proof in such cases is necessarily stringent. In the present case, the learned Courts below have primarily relied upon the statements of the parties recorded on 26.11.2014 before the

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learned Appellate Court during proceedings relating to temporary injunction. For facility of reference, the same are reproduced hereunder:

رفنیقیرمہاہوکلسناحرض۔ رفنیقیایبندنبملقرکااناچےتہںیہدنبملقوہوے۔ ایبناسینارتخاالیپٹن ربفلح ایبن ایک ہک ںیم ےن راپسڈنٹن دمحم دنمی وک غلبم دس زہار روےپ وطبر زر اعیبہن دای اھت اور وکیئ رمق ہن دی یھت ۔ امنیب رفنیقی رحترییاعمدہہوہااھت۔ رکنسدرتسمیلستایک۔ ایبندمحمدنمیراپسڈنٹنربفلح ایبن ایک ہک ںیم ےن االیپٹن اک ایبن نس ایل ےہ ہی درتس ےہ ہک ںیم ےن االیپٹن ےس غلبم دس زہار روےپ ووصل رک ےک اعمدہہہعیبرحترییایکاھت۔اسےکالعوہاالیپٹنےسوکیئرمقوموصلہنیکےہ۔ رکنسدرتسمیلستایک۔

It is further significant that the respondent neither deposited the balance sale consideration before the Court nor produced any credible material to establish her financial capacity to perform her part of the alleged contract. Such omission assumes importance while examining entitlement to the discretionary relief of specific performance. Needless to observe that the reliance placed upon the aforesaid statements is legally misconceived, as the respondent admitted payment of only Rs.10,000/- as against Rs.100,000/- pleaded in the plaint, which remains unproved. This material inconsistency strikes at the root of her case, rendering the alleged agreement doubtful. The admission, being partial and self-contradictory, cannot be treated as conclusive proof of the contract. It is well-settled that an admission, to be relied upon, must be clear, unambiguous, and unequivocal, and must be read as a whole; selective reliance on a portion thereof, while ignoring the qualifying or contradictory part, is legally impermissible. Reference in this regard may be made to the principles laid down by the superior Courts of Pakistan in Messrs KUWAIT NATIONAL REAL ESTATE COMPANY (PVT.) LTD. and others v. Messrs EDUCATIONAL EXCELLENCE LTD. and another (2020 SCMR 171), Mian ZAHID SARFRAZ v. Raja NADIR PERVAIZ KHAN and

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others (1986 CLC 1464), Haji SHER MUHAMMAD v. MUHAMMAD HASSAN SIDDIQI and others (1997 MLD 778) and Mrs. SHABEENA FARHAT v. Messrs HIGHWAY HOUSING PROJECT and 2 others

(2014 CLC 322).

7.The indispensable requirement for grant of specific performance is proof of continuous readiness and willingness on the part of the plaintiff. In the present case, no independent or convincing evidence has been produced to demonstrate that the respondent ever tendered or offered the remaining sale consideration or made any serious effort to have the agreement executed. Mere assertions in pleadings without supporting evidence do not satisfy this mandatory requirement. Even the findings of the learned Courts below reflect absence of such proof, yet the relief has been granted, which is contrary to settled law.

8.It is further evident from the record that the respondent neither deposited the balance sale consideration in Court nor produced any convincing material to demonstrate her financial capacity and readiness to perform her part of the alleged contract. There is nothing on record to show that she ever made any genuine or positive effort to tender the remaining amount to the petitioner, nor that the petitioner refused to accept the same. It is by now well settled that even where the vendor is alleged to have avoided execution of the sale deed, the vendee seeking specific performance is expected to establish her continuous readiness and willingness not only through pleadings but also through tangible evidence, which may include deposit of the balance amount or proof of financial capacity. Failure to satisfy this essential requirement disentitles a party from claiming the discretionary relief of specific performance. In the present case, the absence of any such effort or evidence on the part of the respondent further reinforces the conclusion that the mandatory ingredients for grant of such relief have not been fulfilled. Reference is made to IJAZ UL HAQ v. Mrs. MAROOF BEGUM AHMED and others (PLD 2023 Supreme Court 653) and LIAQUAT ALI KHAN v. MUHAMMAD AKRAM and another (2024 SCMR 1883).

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9.It may further be observed that although there is no absolute requirement under the Specific Relief Act, 1877 compelling a plaintiff to deposit the balance sale consideration at the time of filing of a suit for specific performance, yet the relief itself being discretionary and founded on equitable principles cannot be claimed as a matter of right. The plaintiff is not only required to aver readiness and willingness in the pleadings but must also substantiate the same through tangible and credible evidence demonstrating his financial capacity to perform his part of the contract. Production of material such as pay orders, bank statements or other reliable evidence assumes significance in this regard so as to satisfy the Court that the claim is bona fide and not a device to cover up default or to gain time to arrange funds. In the present case, no such evidence has been brought on record. It is also to be kept in view that with the passage of time the value of money depreciates while that of immovable property generally appreciates; therefore, Courts, while exercising equitable jurisdiction, are required to balance the interests of both parties. The complete absence of any effort on the part of the respondent to secure or deposit the balance consideration further militates against the grant of discretionary relief of specific performance. Reliance is placed upon Mst. Samina Riffat and others v. Rohail Asghar and others (2021 SCMR 7), Muhammad Jamil and others v. Muhammad Arif (2021 SCMR 1108) and Mst. Rehmat and others v. Mst. Zubaida Begum and others (2021 SCMR

10.An additional aspect which renders the impugned judgment of the learned Appellate Court unsustainable is that the suit was decreed subject to deposit / payment of the remaining sale consideration in the sum of Rs.1,75,000/- along with interest at the rate of 10% per annum from the date of institution of the suit till 01.06.2016. This direction is not legally tenable. In the absence of proof of readiness and willingness, the imposition of interest on the alleged balance consideration amounts to rewriting the contract between the parties, which is impermissible in law, particularly in a case where the very existence of the agreement is doubtful. Reliance

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is placed upon Muhammad Yousaf v. Allah Ditta and others (2021 SCMR 1241) and Abdul Waheed v. Additional District Judge and others (PLD 2021 Lahore 453).

For ease of reference, relevant part of Muhammad Yousaf’s case supra is reproduced hereunder:

“6. The first question for consideration is whether the plaintiff (respondent No. 1) was entitled to a decree of specific performance of the contract. In the plaint the respondent No.1 had alleged that he had made payment of an amount of five thousand rupees and then of another thirty-seven thousand and five hundred rupees. The plaint did not assert that the respondent No. 1 was ready, able and willing to tender the balance sale consideration. He also did not deposit the balance sale consideration in Court nor submitted to the Court an application to tender/deposit the balance sale consideration. The suit was dismissed by the learned Judge of the Trial Court but was decreed by the learned ADJ but this was done without discussing the delay of about twenty years in not making payment of the balance sale consideration, let alone as to why it was condoned. In our opinion courts cannot rewrite the terms of a contract, which was effectively done by the learned ADJ when he disregarded an essential term of the contract, which was by when the balance sale consideration would be paid. A suit seeking specific performance of contract for the sale of land is a simple suit wherein to succeed the plaintiff is required to demonstrate that he has performed his obligations under the contract or that he has been prevented to do so by the other side and if this be so to then demonstrate his ability and readiness to perform the commitment undertaken by him in the contract.”

11.It is by now well settled that the relief of specific performance is discretionary and equitable in nature. A party seeking such relief must come to the Court with clean hands and must demonstrate through unimpeachable evidence that he / she was always ready and willing to perform his / her part of the agreement.

12.The question of limitation has also not been addressed in its proper legal perspective. The alleged agreement is of the year 2008, and no specific date for performance was fixed. In such circumstances, it was incumbent upon the learned Courts below to determine the point of accrual of cause of action and examine whether the suit was within limitation. Failure to do so constitutes a material illegality.

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13.The cumulative effect of the above discussion is that the impugned judgments and decrees suffer from misreading and non- reading of material evidence, misapplication of settled legal principles, and material irregularity in the exercise of jurisdiction, thus rendering the same unsustainable in the eye of law.

14.Resultantly, instant revision petition is allowed. The judgments and decrees dated 01.06.2016 and 07.03.2018, passed by the learned Civil Judge, Sahiwal and learned Additional District Judge, Sahiwal, respectively, are hereby set aside, and the suit filed by the respondent is dismissed.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*