Muhammad Imran Arif etc Vs Ch. Muhammad Ashraf (deceased) Through LRs etc

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.56442 of 2021

Muhammad Imran Arif & others

Versus

Ch. Muhammad Ashraf (deceased) through Legal Heirs & others

JUDGMENT

Date of hearing: 11.05.2026.

Petitioners by: Rao Jabbar Khan, Advocate.

Respondents by: M/s. Muhammad Omer Malik, Muhammad Anwar Khan, Arslan Fazil and Wasim Abbas, Advocates (for respondents No.1-A,

1-B & 1-D).

Respondent No.4 ex parte.

Nemo for respondents No.1-C, 2 & 3.

MUHAMMAD SAJID MEHMOOD SETHI, J.- This civil revision, filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C."), has been preferred against the concurrent judgments and decrees dated 24.09.2019 and 13.07.2021 passed by the learned Civil Judge Class-I, Sialkot and the learned Additional District Judge, Sialkot respectively, whereby the suit for specific performance of an agreement to sell dated 23.01.2008 was partly decreed to the extent of recovery of earnest money amounting to Rs. 8,50,000/- (Rupees Eight Lakh Fifty Thousand only) along with markup at the rate of 10% per annum, while the principal relief of specific performance was declined.

2.The controversy arises out of an agreement to sell executed between the predecessor-in-interest of the petitioners and the respondents for a total sale consideration of Rs. 33,00,000/- (Rupees Thirty-Three Lakh only). The case of the petitioners is that a sum of Rs. 8,50,000/- was paid as earnest money through various instalments, duly

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acknowledged through endorsements recorded on the agreement itself, while the remaining consideration was to be paid at the time of execution and registration of the sale deed before the Sub-Registrar. It was further asserted that the petitioners remained ready and willing to perform their contractual obligations at all material times; however, the respondents failed and refused to execute the sale deed, compelling the institution of the suit for specific performance. The respondents contested the claim. Both the learned Courts below, while accepting the factum of payment of earnest money, declined the relief of specific performance and passed a money decree for refund of earnest money along with markup.

3.Learned counsel for the petitioners argues that the learned Courts below illegally declined the relief of specific performance despite admitted execution of the agreement to sell and acknowledged receipt of Rs.8,50,000/- by the predecessor of respondents, which facts, being admitted, required no further proof under Article 113 of the Qanun-e- Shahadat Order, 1984. He contends that the respondents were estopped from denying the agreement after admitting receipt of earnest money, while the documentary evidence on record could not legally be displaced by oral assertions. He further submits that the learned Trial Court failed to frame proper issues regarding cancellation of the agreement and burden of proof, thereby causing miscarriage of justice. Lastly, learned counsel argues that the findings regarding limitation and readiness and willingness are based on misreading and non-reading of evidence, as the agreement itself provided extension of time during subsistence of stay orders and the petitioners had already deposited the remaining sale consideration, proving their continuous readiness to perform the contract. In support, he has referred to Shaukat Nawaz v. Mansab Dad and another (1988 SCMR 851), Mazloom Hussain v. Abid Hussain and 4 others (PLD 2008 Supreme Court 571) and Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others (2021 SCMR 415).

4.Contrarily, learned counsel for the respondents supports the concurrent findings of the learned Courts below by arguing that the

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impugned judgments are based upon proper appreciation of evidence and do not suffer from any illegality, misreading, or jurisdictional defect warranting interference in revisional jurisdiction. In support, he has relied upon Siraj Din and others v. Mst. Khurshid Begum and others (2007 SCMR 1792), Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 Supreme Court 247), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187), Messrs Pak Suzuki Motors Company Limited through Manager v. Faisal Jameel Butt and another (2023 CLD 934), Ufaid Gul v. Mst. Farkhanda Ayub Khan and others (2025 SCMR 64), Muhammad Ashraf Anjum v. Sabir Hussain and others (2026 SCMR 36), Mst. Syeda Irshad Fatima Rizvi v. Bashir Ahmad and others (PLD 2020 Islamabad 184) and Mst. Misbah Farooq and 5 others v. Messrs Daewoo Pakistan Express Bus Service Limited and 2 others (PLD 2005 Lahore 661).

5.None is present on behalf of respondents No.1-C, 2 & 3, hence, they are proceeded against ex parte.

6.Arguments heard. Available record perused.

7.At the outset, the evidentiary framework applied by the learned Courts below requires examination. Both courts proceeded on the premise that execution of the agreement to sell had not been proved, inasmuch as the attesting witnesses were not produced as required under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. However, this approach fails to account for a fundamental distinction in the law of evidence: the distinction between a case where execution of a document is genuinely disputed and a case where execution is categorically admitted by a party on oath.

8.The record reveals that respondent No.1, in the course of his deposition, categorically admitted the execution of the agreement to sell, his signatures and thumb impressions thereon, and the receipt of consideration. This admission was made on oath and is reflected in the evidence on record. It is a well-settled principle of law, engrained in Article 113 of the Qanun-e-Shahadat Order, 1984, that facts admitted by a party require no formal proof. The Hon’ble Supreme Court of Pakistan

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has consistently held that once execution of a document stands admitted by a party, the requirement of producing attesting or marginal witnesses under Article 79 of the Qanun-e-Shahadat Order, 1984 ceases to be mandatory. Needless to observe, an admission by a defendant as to execution of a document dispenses with the formal mode of proof under the Qanun-e-Shahadat Order, 1984. Similarly, admitted facts stand proved and require no independent evidentiary foundation. The application of Article 79 in the present case, in the face of categorical admission of execution by respondent No.1, therefore reflects a fundamental misdirection in law.

9.The learned Courts below were thus required to evaluate the legal and evidentiary consequence of such admission, rather than mechanically applying the rule governing proof of attested documents in a manner divorced from the admitted factual matrix before them. The failure to do so has resulted in a material error going to the root of the adjudication.

10.The record further reveals that the learned Courts below conflated two legally distinct questions: the proof of execution of the agreement, and the question of authority of defendant No. 3. The denial raised by respondent No. 3 did not pertain to the execution of the agreement per se, but was directed at the alleged absence of authorization in favour of respondents No. 1 and 2 to execute the agreement on behalf of respondent No. 3. These are separate and independent inquiries governed by distinct legal frameworks.

11.The question of authority is governed by the law of principal and agent under the Contract Act, 1872. Whether respondents No.1 and 2 acted within the scope of their actual or ostensible authority conferred by respondent No.3 is a question of fact falling within Sections 182 to 238 of the Contract Act, 1872. In particular, the doctrine of ostensible or apparent authority enshrined under Section 237 of the Contract Act, 1872 requires an independent factual determination as to whether the conduct of respondent No.3 held out respondents No.1 and 2 as having authority to bind her. This inquiry could not have been resolved through

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mechanical application of Articles 17 and 79, which govern proof of attested documents, an entirely different evidentiary question. The failure to maintain this distinction has resulted in a misdirection in law which has materially prejudiced the adjudication of the controversy.

12.It is further evident that both the learned Courts below failed entirely to examine the legal consequence of the admitted execution of the agreement by respondent No.1, vis-à-vis the enforceability of the agreement against respondents No.1 and 2 in respect of their admitted proprietary interest in the suit property. This constitutes a material question of law and fact which was neither framed as an issue nor addressed in the impugned judgments, thereby leaving a substantial portion of the controversy wholly unattended.

13.The law of specific performance recognizes the principle of partial enforcement and the Courts retain jurisdiction under Section 22 thereof to mould and grant such relief as the justice of the case demands. Where a contract relates to immovable property in which different parties hold distinct proprietary interests, and where execution of the agreement is admitted by some and denied by others, the court is empowered to consider whether specific performance can be enforced at least to the extent of the share or interest of those who have admitted execution. It is settled law that a divisible or partially enforceable contract may be specifically enforced to the permissible extent. Neither the learned Trial Court nor the learned Appellate Court framed an issue on this question or addressed it in their judgments. This omission constitutes an incomplete adjudication of a material aspect of the case.

14.The defence set up by respondent No.1 with regard to the alleged adjustment of earnest money in a separate family transaction suffers from a fundamental internal inconsistency. The plea of cancellation of the agreement coupled with forfeiture of earnest money on account of alleged default by the vendee is legally irreconcilable with the alternative plea of subsequent adjustment of the same amount in a separate transaction. A party cannot be permitted to approbate and reprobate simultaneously. Having asserted that the earnest money stood

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forfeited upon cancellation of the agreement, the respondents were estopped from simultaneously maintaining that the same amount was adjusted in a separate and distinct transaction. Such contradictory and mutually exclusive pleas are impermissible under the law. A party cannot be allowed to take inconsistent positions in the same proceedings. No documentary evidence, specific particulars, or independent corroboration was produced to substantiate the plea of adjustment. Both courts below rightly rejected this defence; however, its legal inconsistency warranted examination in the broader context of the petitioners’ entitlement to specific performance, which was not undertaken.

15.The issue of limitation was concurrently decided in favour of the petitioners by both the learned Courts below and does not, in the considered view of this Court, suffer from any illegality. The agreement to sell itself indicates that time was not the essence of the contract, and the obligation to complete performance was linked with the execution and registration of the sale deed before the Sub-Registrar. Furthermore, the agreement contained an express stipulation providing for extension of time during the subsistence of any injunctive orders passed by a court of law. It is settled law that in agreements to sell immovable property, time is ordinarily not of the essence of the contract unless expressly and specifically made so. The question whether time can be regarded as the essence of a contract for sale of immovable property merely because a specific date for performance is stipulated in the agreement was elaborately considered by the august Supreme Court in Muhammad Taj Vs. Arshad Mehmood and 3 others (2009 S C M R 114), wherein it was held that the mere fixation of a date for performance does not, by itself, make time the essence of the contract. Such intention must be gathered from the terms of the agreement read in conjunction with the facts and surrounding circumstances of each case. The relevant extract is reproduced hereunder:

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“5. ..... The question of time being essence of contract has to be decided with reference to the facts of the each case. By virtue of section 4 of the Transfer of Property Act, 1882, transactions involving sale of immovable property are subject to the relevant provisions of the Contract Act, 1872. Section 55 of the Contract Act, 1872 stipulates the contracts where time is essence of contract, which is generally not attracted to transactions involving sale of immovable property. Merely mentioning of a specific date for performance of the agreement would not make time the essence of the contract but such intention is to be gathered from the terms agreed amongst the parties contained in the contract in the light of the facts and circumstances of the case.....”

[emphasis supplied]

The learned Courts below were therefore justified in holding that the suit was not barred by limitation, and this Court finds no ground to interfere with that conclusion.

16.With regard to readiness and willingness, it is a mandatory requirement under Section 16(c) of the Specific Relief Act, 1877 that the plaintiff must plead and prove continuous readiness and willingness to perform his / her part of the contract throughout the subsistence of the agreement and the pendency of the proceedings. The petitioners produced documentary evidence before the learned Courts below indicating their readiness and financial capacity to perform their contractual obligations; however, the learned Courts below did not undertake a comprehensive and structured evaluation of this material in the light of the contractual stipulations, particularly the clause relating to extension of time during the subsistence of injunctive orders, and the surrounding circumstances. The learned Trial Court shall, upon remand, specifically frame and adjudicate an issue with regard to readiness and willingness in accordance with Section 16(c) of the Specific Relief Act,

17.It is further noted that both the learned Courts below failed to frame and decide several material issues arising directly from the pleadings of the parties. The framing of issues under Order XIV of the C.P.C. is not a mere procedural formality; it constitutes the very foundation upon which the trial is conducted and the controversy adjudicated. The omission to frame proper and comprehensive issues

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goes to the root of fair adjudication and vitiates the proceedings to the extent of the unaddressed controversy. The august Supreme Court has consistently emphasized the importance of framing of issues. In Haji Farman Ullah Vs. Latif-ur-Rehman (2015 S C M R 1708), it was held that:

“4. ...It may be pertinent to mention here that the purpose of framing issues in a civil litigation is that the parties must know the crucial and critical factual and legal aspects of the case which they are required in law to prove or disprove through evidence in order to succeed in the matter on facts and also the points of law.”

In the present case, the following material issues, which arose squarely from the pleadings, were neither framed nor decided: (i) whether defendants No. 1 and 2 executed the agreement within the scope of their actual or ostensible authority conferred by defendant No. 3; (ii) whether the agreement is enforceable against defendants No. 1 and 2 to the extent of their respective proprietary shares in the suit property; (iii) what is the legal effect of the categorical admission of execution made by defendant No. 1 on oath; (iv) whether the plea of adjustment of earnest money in a separate transaction is proved and credible, having regard to its internal inconsistency; and (v) whether the petitioners are entitled to specific performance, wholly or partially, in the light of the foregoing. The failure to frame and determine these issues has resulted in a fundamentally incomplete adjudication of the controversy.

18.It is well settled that this Court, in the exercise of its revisional jurisdiction under Section 115 of the C.P.C., does not ordinarily interfere with concurrent findings of fact returned by two courts below. However, concurrent findings do not acquire immunity from revisional scrutiny where they are the product of misreading of material evidence, non- reading of evidence on the record, misapplication of settled legal principles, or failure to frame and decide material issues arising from the pleadings. In such cases, the protection ordinarily afforded to concurrent findings does not apply, and this Court is empowered and duty-bound to intervene in the interest of justice.

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19.In the present case, the cumulative effect of the errors identified above is as follows: first, the legal principle governing admitted execution was misapplied, resulting in an erroneous rejection of the evidentiary value of the agreement; second, the distinct questions of execution and authority were conflated, leading to a misdirection in law; third, the material question of partial specific performance was not framed as an issue and was entirely left unanswered; fourth, the internally inconsistent defence of the respondents was rejected but not examined in the context of the petitioners' entitlement to specific performance; fifth, the requirement of readiness and willingness was not comprehensively evaluated; and sixth, several material issues arising from the pleadings were not framed or decided. These errors, individually and collectively, constitute material irregularity and misreading of evidence within the meaning of Section 115 C.P.C. and warrant interference by this Court. However, since proper adjudication of this controversy requires determination of disputed questions of fact, including respective proprietary shares, the scope of authority of defendants No. 1 and 2, and enforceability to the extent thereof, this Court does not consider it appropriate to finally resolve such factual disputes in the exercise of revisional jurisdiction.

20.Consequently, this civil revision is allowed. The concurrent judgments and decrees dated 24.09.2019 and 13.07.2021 passed by the learned Civil Judge, Sialkot and learned Additional District Judge, Sialkot, respectively, are set aside and the case is remanded to the learned Trial Court for fresh decision in accordance with law. The learned Trial Court shall frame proper and comprehensive issues arising from the pleadings, particularly regarding the admitted execution of the agreement, authority of defendants No.1 and 2, enforceability of the agreement, plea of adjustment of earnest money, readiness and willingness of the petitioners, and entitlement to specific performance, wholly or partially. The learned Trial Court shall also examine the effect of the admissions made by respondent No.1 in the light of Article 113 of the Qanun-e-Shahadat Order, 1984, and the provisions of the Contract

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Act, 1872 and Specific Relief Act, 1877. The parties shall be afforded full opportunity to lead evidence and all questions of fact and law shall remain open for fresh determination. The observations made herein are tentative and shall not prejudice either party. The learned Trial Court shall decide the matter expeditiously, preferably within a period of six (06) months from receipt of the certified copy of this judgment.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*