Mst. shamshad Begum Vs M.Bashir

JUDGMENT SHEET

PESHAWAR HIGH OURT. PESHAWAR

JUDICIAL DEPARTMENT

C.R. No.363-P/2012 Mst. Shamshad Begum and others Vs.

Mohammad Bashir and others

Date of hearing 27.11.2023 tsor petitioner(s): Muhammad Taif Khan, Advocate. For respondent(s): Mr. Kashif Zaman, Advocate. ?t ?k ?k :k ,. rr

JUDGMENT

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IJAZ ANWAR, J. This civil revision petition is filed against the judgment and decree dated 03.12.2011 passed by the learned Additional District Judge-XII, Peshawar, whereby, appeal filed by the petitioners was dismissed and the consolidated judgment and decree dated 31.07.2010 passed by the learned Civil Judge-I, Peshawar was maintained, whereby, suit filed by respondent No.l (now his LRs) was decreed while that of the predecessor of the petitioners was dismissed.

2.Facts leading to the institution of this civil revision petition are that the predecessors of the parties have filed suits for specific performance, declaration, possession, recovery and permanent injunction etc against each other before the Court of learned Senior Civil Judge, Peshawar (details are given in the plaints). Both the parties have contested the suits by filing their written statements. The learned trial Court, thereafter, framed issues and also directed

the parties to produce and record evidence in support of their respective cases, which they produced and recorded. Both the suits were consolidated and the learned civil Judge-I, Peshawar, after hearing arguments of learned counsels for the parties, decreed the suit of the predecessor of respondent No.l while dismissed the suit of the predecessor of the petitioners vide the consolidated judgment and decree dated 3l.o7.2olo.

Being aggrieved, the present petitioners filed appeal before the learned District Judge, Peshawar and vide the impugned judgment and decree dated 03.12.2011, their appeal was dismissed and the consolidated judgment and decree of the learned trial court was maintained. Hence, this civil Revision petition.

3.Arguments heard and record perused.

4.The bone of contention between the parties is the agreement to sell dated 07.07.1993, whereby, the predecessor of the petitioners namely Salah-ud-Din has sold out the house measuring 08 Marla to the predecessor of d respondent No.l namely Mohammad Bashir on a sale consideration of Rs.4,70,000/-. Possession of the house in question was given to the respondent and an amount of Rs.2,20,000/- was duly received. The deceased Salah-ud-Din has agreed in the said deed that on clearing the charge of mortgage from the House Building Finance Corporation, the house in question shall be transferred in the name of the deceased Mohammad Bashir after the receipt of the

outstanding amount. There was, however, a penal clause in the agreement to sell dated 07.07.1993 that in case, either party failed to discharge his liability i.e. payment of the outstanding amount by the respondent and clearance of House Building Finance corporation by the seller would entail forfeiture of the earnest money and payment of Rs.4,40,0001- to the respondent in case the house in question is not transferred, as the case may be.

5.The predecessor of the petitioners filed a declaratory suit for ineffectiveness of the agreement to sell dated 07.07.1993 on the ground that failure on the part of the respondent No.1 to pay the remaining outstanding amount and also claimed possession of the house, besides, forfeiture of the earnest money while Mohammad Bashir has also filed a suit for specific performance of the contract for the payment of the remaining amount of Rs.2,50,000/- and for the transfer of the suit house in his name. He, in the alternate, has also claimed recovery of Rs.4,40,000/- sas double of the earnest money in view of the penal clause. Both the suits were consolidated and ultimately, vide judgment and decree dated 31.07.2010, the learned Civil Judge decreed the suit of the respondent No.l while dismissed the suit filed by the predecessor of the petitioners. It appears that during the pendency of the suit, the said Salah-ud-Din, the original plaintiff, died and as such, his LRs, the present petitioners, have filed an appeal before the learned District Judge, Peshawar and vide the judgment and

decree dated 03.12.2011, their appeal was dismissed by the learned Additional District Judge-XII, peshawar.

6.There were certain admitted facts which have not been taken into account by the learned courts below which goes to the very root of the case. The agreement to sell was infact a conditional deed in which the predecessor of the petitioners was firstly required to have redeemed the mortgage; similarly, it came to light later that even on the house in question, there was also a charge of the National Bank of Pakistan, because, the said Salah-ud-Din has also obtained loan from the National Bank of pakistan and has not cleared the. house in question. The predecessor of the petitioners was required under the law to have first redeemed the house in question from House Building Finance corporation and also to clear it from the charge of the National Bank of Pakistan, only then he can attribute non-performance of agreement to the respondent.

7.The arguments of learned counsel representing the petitioners that since the respondent has failed to make a a good the requisite sales consideration within the period specified in the agreement to sell i.e. 06.07.1994, as such, the earnest amount is to be forfeited to them, is against the record, because, as stated above, failure was mainly on the part of the predecessor of the petitioners in clearing the house in question from the charge and has not redeemed it in time. Even the house in question was not redeemed when a decree was passed

in favour of the predecessor of the respondent No.1 by the learned civil Judge on 3l .07.2010. As stated above, where the terms of contract were not complied, in such circumstances, the only legal solution was the penal consequences provided under the deed and under no circumstances, suit for the specific performance can be decreed.

8.Mohammad Bashir/respondent was conscious of this fact that's why he, in his suit, has first craimed the relief of specific performance and in the alternate has claimed recovery of Rs.4,40,000/- as penalty agreed in agreement to sell. The Hon'ble Supreme court of Pakistan in the case titled "Rao Ah Rehman ) throush lepal heirs Vs.

Muha mad Afzal sed) th ush lesal and

others (2023 SCMR 81$" has held as under:- "(e) Contract Act (IX of 1872)- S. 10---Contract---Terms and conditions of contract---Where an effective and enforceable contract is not structured by the parties, it is not the domain or province of the Court to make out a contract for them, and the lis would be decided on the basis of al terms and conditions agreed and settled \ down in the contract.

(f)Specific Relief Act (I of 1877)--- t S. 12--- Decree for specific performance--- Scope---Decree for specific performance may not be passed if the substratum of the contract suffers from shortcoming or legal infirmities which renders the contract unacceptable and unenforceable".

9 'Ihere is yet another aspect of the case. The respondent, after filing the suit for specific performance, has neither deposited the remaining sales consideration nor any

such request is made for such deposit before the court. It is pertinent to mention here that the law on the point is by now well settled. Reliance is placed on the case titled lrrazar Hussain and another Vs. Sved Iobal Oadri

throu h and S

1216\", wherein, the apex Court held that "buyer's primarJt oblicati in o contract of le is to make nt of the sale ASS

the seller refuses to recei oavment the must establish that he had the required monev hich was keot aside for the seller. for instance, by makins a oa y order or cashier cheaue in his nome: this would show thot the buver no lon had access to the sale consi deration--- tive the it it t consl iod in court. If o buyer does not fulfill his primarv oblipation to secure/tender the sale consideration s cl c ment to

nd does so w the sale

court. the b is olaced in an adyant position".

10.Same view was earlier expressed in the cases titled "Mst. Noor.Iehan and an r Vs. Saleem Shahadat (2022 SCMR 918). Reference can also be made to the cases titled Muha Yousaf Vs. Allah Ditta and others CI021 SCMR l24l\- Mst. Samina Riffat and others Vs. Rohail Asshar and ers (2021 SCMR 0n. Hamood Mehmood Vs. Mst. Shabana Ishaoue a d others (2017 SCMR 20221

and Liaqat Ali Khan and others Vs. Falak Sher and others

(PLD 2014 SC 506)".

11.In view of the above, as stated above, the only remedy available for the deceased Mohammad Bashir was to have insisted for the penal consequences for failure on the part of the predecessor of the petitioners to perform the agreement to sell. As such, the judgments and decrees of the learned Courts below are legally not sustainable.

12.It is pertinent to mention here that the respondent, in response to the suit filed by the predecessor of the petitioners, also claimed that he has made certain improvements in the suit house and has claimed an amount of Rs.3,00,0001- at the relevant time, however, he has enjoyed the possession of the suit house since the year, 1994, as such, he is not entitled to claim cost of improvement. Moreover, the predecessor of the respondent No.l has paid an amount of Rs.2,20,0001- at the time of execution of agreement to sell dated 07.07.1993 and it was duly agreed that in case, the predecessor of the petitioners failed to clear the house from the charges i.e. rnortgage and loan from the National Bank of Pakistan, then he was obligated to pay double the amount of the earnest money, total comes to Rs.4,40,000/-, as such, while setting aside the judgments and decrees and modifying the same, the respondent No.1 is held entitled to Rs.4,40,000/- with interest at the bank rate from the year, 1995 till its reahzation.

13.This civil revision petition is allowed in the above terms

Anno unced Dt:27.11.2023

JUDGE

(SB)Hon'ble Mr. Justice Iiaz Anwar * M uhrm marl ullah*