PLJ 2004 Lahore 1512
Present: ABDUL SHAKOOR
PARACHA, J. MUHAMMAD
SALEEM-Appellant
versus MUHAMMAD
SHAFI and 4 others-Respondents
R.S.A. No. 61 of 1998, heard on 27.1.2004. (i)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
-—Arts. 17, 78 & 79--Proof of a document-Essential-Documents are to
be
proved through handwriting of person who had signed them-Different
modes of proving document have been stated in Arts. 78 and 79 of
Qanun-e-Shahadat, 1984--Agreement to sell was not required to be
attested under any law, therefore, non-production of marginal
witnesses
thereof, would not affect its validity. [P. 1617]
A
(ii) Specific Relief Act, 1877 (I of 1877)--
-—Ss. 12 & 20--Adequate relief-Compensation in terms of money is not
adequate in suit for specific performance. [P. 1519]
B
(iii) Specific Relief Act, 1877 (I of 1877)--
—-S. 12-Civil Procedure Code, 1908 (V of 1908), S. 100-Concurrent
findings of Courts below assailed-Legality-Execution of agreement
to sell and receipt stood proved on record therefore, concluded
enforceable agreement between parties had come into effect-Power
of attorney relating to specified defendants having been cancelled
before execution of agreement to sell therefore Courts below had
rightly found that
agreement to sell in respect of those specified defendants was not
enforceable in as much as no authority vested in attorney to execute
agreement to sell on behalf of his principals who had got his authority
cancelled before execution of agreement in question-Findings of
Courts
below therefore, would not warrant interference and the same were
maintained. [Pp. 1519 & 1520] C, E
(iv) Transfer of Property Act, 1882 (IV of 1882)--
—-S. 52~Arbitration Act, 1940 (X of 1940), Ss. 14 & 17-L pendens,
principle of--Applicability--Arbitration proceedings during pendency
of
suit for specific performance relating to same subject matter, between
the
same parties were hit by the principle of Us pendens in terms of S. 52,
Specific Relief Act, 1882. [P. 1520] D
1990 CLC 1014; 1995 CLC 434; PLD 1999 Lahore 193
and PLD 1995 Lahore 205, ref.
Syed Samar Hussain Shah, Advocate for Appellant.
Mr. JehangirA. Jhoja, Advocate for
Respondents. Date of hearing: 27.1.2004.
JUDGMENT
Through this Regular Second Appeal Muhammad Saleem,
appellant, Defendant No. 5 in the original suit for specific
performance of the agreement dated 4.2.1988 filed by Muhammad
Shafi, Respondent No. 1 against Respondents Nos. 2 to 5, impugns the
order dated 4.7.1998, passed by the District Judge, Toba Tek Singh
through which the judgment and decree dated 7.2.1998 in favour of said
Muhammad Shafi, passed by the Senior Civil Judge, Toba Tek Singh in
the suit for specific performance was maintained.
2. A piece of land, the detail of which has been given in the plaint
of the suit filed by Muhammad Shafi for specific performance of the
agreement, instituted on 7.10.1991, was owned by Malik Ali Akbar son of
Mst. Jannat Khatoon widow, Malik Ghulam Muhammad and Atta
Muhammad sons of Mian Muhammad, Defendants Nos. 1 to
4/Respondents Nos. 2 to 5. On 4.2.1988 Malik Ali Akbar, Defendant
No. 1 as General Attorney of Defendants Nos. 2 to 4, executed an
agreement (Exh. PW-1/1) of the suit property and also executed a
receipt (Exh. PW-2/1) for the amount of Rs. 2,00,000/- on the same
day. It was agreed through the agreement that Defendant No. 1 shall
make payment of Rs. 2 lacs to the plaintiff within 1% year by 4.8.1990,
failing which he agreed to transfer 10 Killas of agricultural land, situated in
Square No. 41, in favour of the plaintiff-respondent through the registered
sale-deed. Neither the amount was returned nor the sale-deed was
executed in the stipulated time despite the demand of the plaintiff to do
the same. Ultimately the defendant refused to honour the
commitment
which compelled the respondent-plaintiff Muhammad Shafi to file the
suit for specific performance of the agreement dated 4.2.1988.
3. The Defendants Nos. 1 to 4 did not appear in the trial
Court.
Consequently ex-parte proceedings were conducted against Respondent No.
1
vide order dated 16.12.1991, whereas the remaining defendants did
not
appear even despite substituted service and they were also proceeded
against
ex-parte on 19.1.1993. Defendant No. 5/appellant Muhammad
Saleem
contested the suit by filing the written statement. It was contended on
behalf
of Defendant No. 5 that Defendants Nos. 1 to 4 agreed to sell the
suit
property in consideration of Rs. 265000/- to Muhammad Amin, brother
of
appellant/Defendant No. 5 on 8.8.1985 and received Rs. 40,000/- in
advance
but they resiled thereafter and Muhammad Amin filed a suit for
specific
performance of the agreement against Defendants Nos. 1 to 4; Rs. 2
lacs
were given as loan to the Defendants Nos. 1 to 4 by the Defendant No.
5
appellant at the security of the land on the pretext that the amount of Rs.
2
lacs was for the contest of the suit of pre-emption of Saleh
Khatoon;
thereafter Defendant No. 1 Malik Ali Akbar filed a suit for pre-
emption
against Defendant No. 5 Muhammad Saleem on 17.2.1988, which
was
dismissed on 28.9.1988. It was further alleged in the written statement
that
the agreement between Muhammad Shafi, plaintiff, and Malik Ali
Akbar,
Defendant No. 1 was collusive and Defendant No. 5 Muhammad Saleem
was
the bonafide purchaser for value of the suit property and he had
no
knowledge of the agreement already executed by Malik Ali Akbar
etc.,
Defendants Nos. 1 to 4 in favour of Muhammad Shafi, plaintiff. It
was
further added in the written statement that Muhammad Saleem,
Defendant
No. 5 had been declared owner on the basis of the Award dated
15.4.1992
which had been made rule of the Court and the same was challenged by
the
plaintiff Muhammad Shafi by filing an application under Section 12(2)
CPC,
which was pending adjudication in the Court of Civil Judge, Toba Tek
Singh
and in this view of the matter the suit filed by Muhammad Shafi is
not
maintainable.
4. The controversial pleadings of the parties resulted in
framing of
the following issues by the learned Senior Civil Judge:--
1. Whether the plaint of the suit is liable to be rejected
under
Order VII Rule 11 CPC ? OPD.
2. Whether the agreement deed dated 4.2.1988 is collusive
and
mala fide. If-so, its effect? OPD.
3. Whether the Defendant No. 5 is a bonafide purchaser for
value
without notice? OPD
4. Whether the suit is not maintainable in view of P.O. No. 4
of
the written statement? OPD.
5. Whether the suit is not competent in view of the rule of
the
Court dated 15.4.1992? OPD
6. Whether the Wakalatnama does not bear the signatures of
the
plaintiff or his general attorney and the suit has been
filed
without authority. If so, its effect? OPD.
7. Whether the suit cannot proceed in the presence of
the
application under Section 12(2) of the CPC pending in
the
Court for setting aside the decree/rule of Court? OPD.
8. Whether the Defendant No. 5 is entitled to special costs
under
Section 35-A CPC. If so, to what amount ? OPD.
9. Whether the Defendants Nos. 1 to 4 agreed to sell the suit
land
to the plaintiff on 4.2.1988 in consideration of Rs.
2,00,000?
OPP
10. Whether the Defendants Nos. 1 to 4 received the sale price
of
Rs. 2,00,000 vide payment receipt dated 4.2.1988? OPP.
11. Whether the plaintiff is entitled to the decree for
specific
performance of the sale contract dated 4.2.1988 in regard to
the
suit land. If so, on what terms and conditions? OPP.
12. Whether the plaintiff is entitled to the decree for
permanent
injunction as consequential relief, prayed for? OPP.
13. Relief.
5. Muhammad Shafi, plaintiff/respondent produced Bashir
Ahmed,
stamp-vendor, Ghulam Rasool, petition-writer, Nabi Bakhsh, one of
the
marginal witnesses of the agreement and of the receipt, and Munir
Ahmad,
general attorney of the plaintiff, as PWs-1 to 4. In documentary evidence
he
tendered Fard Jamabandi Exh. P. 3, the agreement Exh. PW-1/1,
receipt
Exh. PW-2/1 and certified copies of the plaint and orders Exh. P. 4 to P.
12
as well as copy of the order dated 23.4.1996 as Exh. P. 13.
6. In rebuttal, Muhammad Saleem, appellant-Defendant No.
5
examined his general attorney Muhammad Amin as DW-1 and he
himself
appeared as DW-2. In documentary evidence he produced Fard
Jamabandi
as Exh. D-1, copy of the order of the Senior Civil Judge dated 11.4.1992
as
Exh. D.2, order of the learned Additional District Judge dated 27.4.1992
as
Exh. D-3, Cancellation of the general power of attorney as Exh. D-4,
Khasra
Girdawari Exh. D-5 and copy of registered sale-deed as Exh. D-6.
7. By discussing Issues Nos. 2, 9, 10, 11 and 12 jointly the
learned
Civil Judge held that Defendant No. 1 obtained Rs. 2 lacs from the
plaintiff
and executed agreement dated 4.2.1988 and on the same day also
executed
receipt. According to the learned Civil Judge, both these documents
were
admitted between the parties. Defendant No. 1 did not return the
disputed
amount to the plaintiff-respondent. The agreement in favour of
Muhammad
Amin was cancelled and the suit for specific performance filed
by
Muhammad Amin against Malik Ali Akbar and other defendants
was
dismissed as withdrawn. The general power of attorney in favour of
Malik Ali Akbar executed by Mst. Jannat Khatoon, Malik Ghulam
Muhammad and Malik Atta Muhammad, Defendants Nos. 2 to 4, was
cancelled in 1987 therefore Defendant No. 1 Ali Akbar had no authority
to sell the property belonging to Defendants Nos. 2 to 4. The learned
Judge finally concluded that, "The agreement, therefore, is executable as
against Defendant No. 1 only to the extent of his share in the property."
He, therefore, decided Issue No. 2 against the defendant and Issues Nos. 9
and 10 were decided in favour of the plaintiff-respondent. Issues Nos. 11
and 12 were also answered in favour of the plaintiff and the plaintiff-
respondent was declared to be entitled for the decree of specific
performance of the agreement dated 4.2.1988 against Defendant No. 1
only. Regarding Issue No. 3 "Whether the Defendant No. 5 is bonafide
purchaser for value without notice", the learned Civil Judge observed that
during the pendency of the suit for specific performance filed by
Muhammad Shafi all subsequent developments were made as
Muhammad Amin filed a suit for specific performance of the agreement
which was later on withdrawn because of the compromise and thereafter
an Award was made rule of the Court therefore the decree and the Award
in favour of the appellant dated 12.9.1991 was hit by the principle of lis-
pendens. The issue was therefore, decided against the defendant-
appellant Muhammad Saleem. Since Issue No. 3 was decided against
Muhammad Saleem, defendant-appellant, therefore, while deciding
Issues Nos. 4 and 5, it was observed by the trial Court that
proceedings of arbitration made during the pendency of the suit were hit
by the principle of lis-pendens and the Award had no effect upon the
rights of the plaintiff-respondent. Consequently, the suit of Muhammad
Shafi, respondent, was decreed to the extent of Defendants Nos. 1 and 5,
Malik Ali Akbar and Muhammad Saleem only, whereas the relief to the
extent of Mst. Jannat Khatoon, Malik Ghulam Muhammad and Malik
Atta Muhammad, widow and sons of Mian Muhammad was declined vide
judgment and decree "dated 7.2.1998.
8. Muhammad Saleem, Defendant No. 5/appellant filed an appeal
against the judgment and decree dated 7.2.1998. The said judgment and
decree of the trial Court was maintained as the appeal was dismissed by
the learned District Judge vide judgment and decree dated 4.7.1998. It
was observed by the First Appellate Court that the agreement is
executable against Defendant No, 1 only to the extent of his share in
the property. It was also observed that, "The appellant is not a party to
the agreement. He has admitted in his written statement that the
agreement dated 4.2.1988 was executed but it was collusive between
Respondents Nos. 1 and 2. He has not led any evidence to prove that the
same was collusive except his own statement. He has also admitted the
payment of Rs. 2 lacs by Respondent No. 1." It was further observed
that, "the suit for specific performance filed by Muhammad Amin,
brother of Muhammad Saleem against Respondents Nos. 2 to 5 on the
basis of agreement dated 8.8.1985 was dismissed as withdrawn on
18.9.1990 (Exh.P. 5). The amount was returned to Amin
under the compromise. He has also not asserted any fraud. The appellant
cannot take benefit of file of the suit by Muhammad Amin because that
was an independent transaction which ended in compromise." It was
further obsen'ed that the decree which was made rule of the Court on the
basis of arbitration Award is hit by the principle of lis-pendens and
since the application for referring the matter to the Arbitration was
filed by Muhammad Saleem when the suit of Muhammad amin was
pending therefore the Arbitrator appointed without the consent of the
Court as provided under Section 21 of the Arbitration Act was illegal.
Consequently the appeal was dismissed.
9. The learned counsel for the appellant has challenged
the
concurrent findings of the two Courts below by filing the second appeal. It
is
contended that the judgments and decrees of both the Courts below
are
against the law and facts and result of misreading and non-reading
of
evidence. But, I may observe here that no misreading and non-reading
of
evidence has been pointed out by the learned counsel for the appellant.
10. It is further contended that all the issues were wrongly
decided.
The onus to prove the Issues Nos. 9, 10 and 11 regarding entering of
the
agreement to sell dated 4.2.1988 in consideration of Rs. 2 lacs with
the
plaintiff vide receipt dated 4.2.1988 and whether the plaintiff is entitled
to.
the decree for specific performance of the sale contract dated 4.2.1988 was
on
the plaintiff-respondent Muhammad Shafi. To prove the agreement
dated
4.2.1988 plaintiff produced Bashir Ahmad, stamp-vendor, as PW-1
who
stated that the stamp paper, on which the agreement was reduced
into
writing, was purchased by Malik Ali Akbar. Ghulam Rasool, petition-
writer,
appeared as PW-2 and stated that he is the author of the
agreement
Exh.PW-1/1. Nabi Bakhsh, PW-3, was the marginal witness of
the
agreement and receipt Exh. PW-2/1 through which Malik Ali Akbar
received
Rs. 2 lacs. The documents are to be proved through the hand-writing of
the
person who has signed them. There are different modes of proving
a
document under Articles 78 and 79 of the Qanun-e-Shahadat Order,
1984.
The objection of the learned counsel for the appellant is that
Respondent
No. 1 plaintiff Muhammad Shafi produced only one marginal
witness,
namely, Nabi Bakhsh, PW-3, who happens to be his father-in-law
and
another marginal witness namely Muhammad Afzal Alvi was not
produced
therefore the agreement to sell dated 4.2.1988 was not proved in
accordance
with Articles 17 and 78 of the Order. This objection is not
sustainable,
because the agreement to sell is not required to be attested under any law.
It
has been ruled in the case reported as Manzoor Hussain Khan us. Mst.
Asia
Begum and 21 others (1990 CLC 1014) that the agreement to sell does
not
require attestation of two marginal witnesses, therefore, the provision
of
Article 79^ of the Qanun-e-Shahadat Order is not attracted. Even
otherwise,
Qanun-e-Shahadat Order, 1984, being a comprehensive Code,
it
contemplates numerous modes of proof of documents. In this view of
the
matter, the objection that the agreement has not been proved by
production of two marginal witnesses is repelled.
11. It is next contended by the learned counsel for the appellant
that
the terms of the agreement to sell dated 4.2.1988 Exh.PW-1/1 stipulate
that
in case of default in payment of the amount on the part of the vendor
Malik
Ali Akbar as well as on failure to execute the sale-deed he was under
legal
obligation to pay double the amount to the plaintiff Muhammad Shafi
which
could have been safely considered as adequate damages in terms of
money
and therefore the alleged agreement was not specifically enforceable and
the
decree in the suit for specific performance would have not been granted.
The
learned counsel for the respondent, on the other hand, contends that
under
Section 20 of the Specific Relief Act liquidated damages may not be
the
compensation. Reliance has been placed on the cases reported as Mst.
Noor
Jehan and others vs. Muhammad Rafique and others (1995 CLC
43
Peshawar) and M/s Pioneer Housing Society (Pvt.) Limited vs. M/s Babar
&
Company through Shakir Ali Khan and 2 others (PLD 1999 Lahore 193).
It
is further contended that by virtue of Section 12 of the Specific Relief Act
it
shall be presumed that compensation would not be an adequate relief.
12. To resolve the controversy between the parties, reading
of
Sections 12 and 20 of the Specific Relief Act, 1877 is relevant, which
are
reproduced as under:
"12. Cases in which .specific performance enforceable.-Except as
otherwise provided in this Chapter, the specific performance of
any contract may in the discretion of the Court be enforced:
(a) When the act agreed to be done is in the performance,
wholly or
partly, of a trust;
(b) when their exists no standard for ascertaining the
actual
damage caused by non-performance of the act agreed to
be
done;
(c) when the act agreed to be done is such that
pecuniary
compensation for its non-performance would not
afford
adequate relief; or
(d) when it is probable that pecuniary compensation cannot be
got
for the non-performance of the act agreed to be done.
Explanation.-Unless and until the contrary is proved, the
Court shall presume that the breach of a contract to transfer
immovable property cannot be adequately relieved by
compensation in money, and that the breach of a contract to
transfer movable property can be thus relieved.
20. Liquidation of damages not a bar to specific performance.--A
contract, otherwise proper to be specifically enforced, may be
thus
enforced, though a sum be named in it as the amount to be paid
in case of its breach, and the party in default is willing to pay the
same.
Bare reading of the above stated provisions of law would show that the
compensation in terms of money is not the adequate relief in a suit for
specific performance. In the case of M/s Pioneer Housing Society (Put.)
Ltd.
iPLD 1999 Lahore 193) (supra), this Court while interpreting Section 12
of
the Specific Relief Act (I of 1877) held that, "Non-performance of an
agreement pertaining to immovable property cannot be compensated
under
S. 12, Specific Relief Act, 1877 in terms of money, therefore, its
enforcement
cannot be refused unless same causes any extreme hardship to the other
side".
13. The receipt of Rs. 2 lacs has been admitted by Malik AH
Akbar
from Muhammad Shafi, plaintiff-respondent. The execution of
the
agreement to sell Exh.PW-1/1 and the receipt Exh.PW-2/1 have
been
proved on the record. In this view of the matter, there was a
concluded
enforceable agreement between Muhammad Shafi, plaintiff-respondent
and
Malik AH Akbar, Defendant No. 1. Since the power of attorney on behalf
of
Mst. Jannat Khatoon, widow, Malik Ghulam Muhammad and Malik
Atta
Muhammad, Defendants Nos. 2 to 5 was cancelled on 24.8.1987 (Exh. D-
4)
prior to the execution of the agreement dated 4.2.1988, therefore, both
the
Courts below have rightly held that the agreement to sell dated
4.2.1988
against the Defendants Nos. 2 to 4 was not enforceable as Malik AH
Akbar
had no authority on behalf of the other defendants to execute the
agreement
to sell dated 4.2.1988.
14. This brings me to discuss Issue No. 3 regarding the bona
fide
purchaser of the land by Defendant No. 5 appellant with value and
without
notice and the principle of lis-pendens. It is the case of appellant
Muhammad
Saleem that Defendants Nos. 1 to 4 transferred the land through
the
agreement to sell dated 8.8.1985 for a consideration of Rs. 2,65,000/-
with
Muhammad Amin, real brother of Defendant No. 5/appellant
Muhammad
Saleem. The suit of Muhammad Amin for specific performance
against
Defendants NoSi 1 to 5 was filed on 13.3.1988 but the same was
withdrawn
on the basis of compromise. It is no-where mentioned in the order
of
•vithdrawal of the suit of Muhammad Amin that they had agreed upon
to
decide the matter through arbitration of Ashfaq Ahmad, Advocate. The
suit
vas filed by Muhammad Amin, real brother of the appellant
Muhammad
Saleem against the other defendants for specific performance of
the
agreement dated 8.8.1985, but the application under Sections 14 and 17
of
the Arbitration Act to make the Award dated 12.9.1991 as rule of the
Court
was moved by Muhammad Saleem. This application was filed by him
when
the suit of Muhammad Amin, on the basis of agreement dated 8.8.1985
was
pending adjudication. Therefore, the application moved in the said suit
could
have not been filed and the Arbitrator could have not been
appointed
without the intervention of the Court as contemplated in Section 21 of
the
Arbitration Act, 1940. In the case reported as Abdul Qayyum Khan
vs.
Government of Punjab through Secretary, Local Government and Rural
Development Department and another (PLD 1995 Lahore 205) it has been
ruled that if the arbitrator appointed without the intervention of the
Court the Award is void and cannot be made rule of the Court.
15. From all the above discussion, it is clear that all the
proceedings in the suit initiated by Muhammad Amin on the basis of
the agreement dated 8.8.1985, which suit was dismissed as withdrawn,
have no nexus with the suit of specific performance filed by Muhammad
Shafi. Further-more, the proceedings under Sections 14 and 17 of the
Arbitration Act were filed during the pendency of the suit of
Muhammad Shafi for specific performance, therefore, the same was
hit by the principle of lis-pendens under Section 52 of the Transfer of
Property Act and no rights in the property were available to Muhammad
Saleem, appellant.
There is concurrent finding of fact against the appellant that
Defendant No. 1 Malik Ali Akbar entered into the agreement to sell with
Muhammad Shafi regarding the suit land on 4.2.1988 and received Rs. 2
lacs and executed receipt Exh. P2. The signatures are admitted on the
documents by Malik Ali Akbar. He had no authority to execute the
agreement to sell on behalf of other Defendants Nos. 2 to 4. Award dated
12.9.1991, which was made rule of the Court, does not confer any right in
favour of the appellant.
The concurrent finding of fact recorded by the two Courts below,
on the basis of evidence and correct interpretation of Sections 12, 20, 27-B
of the Specific Relief Act and Section 52 of the Transfer of Property Act
and the provisions of the Arbitration Act, do not call for any interference
in the second appeal. There is no question of law agitated by the appellant
in this second appeal. This being so, the appeal has no merits and the
same is dismissed with costs.
(A.A.) Appeal dismissed.
