MIAN SAQIB NISAR, J.--- On 9.9.1981, the appellant brought a suit against Mst. Nazir Begum and Munir Fatima, claiming that the two lathe* who were the owners of the land measuring 45 kanals and 7 marlas, through an agreement dated 10.9.1978, agreed to sell the same to the appellant for a total consideration of Rs. 82,500/-, out of which, at the time of the agreement, the vendors received a sum of Rs. 50.000/- as earnest money, whereas the balance considration was payable by 31.12.1978 and the sale-deed was to be finalized, and got registered. Anyhow, the appellant earlier was able to procure an ex parte decree dated 20.5.1984, but on an application of the defendants, the decree was set aside and the case was contested. In the written statement, two ladies set out the defence by denying the agreement to sell and also the balance consideration of Rs. 32,500/- Was not paid by the appellant and thus he has defaulted in this behalf; however, subsequently, when their , attorney 'appeared in the Court as witness, he accepted the execution of.
The:document, but the case was contested on the second plea. After framing of the issues and putting the parties- to trial, the learned Civil Judge, while holding that as the agreement to sell has been admitted by the attorney of the defendants and the payment of Rs. 32,500/-, has been established through the statements of Bagh All (PW-3) and Lal Masih (PW-4), resultantly, decreed the suit. However, on appeal of the respondents, which has been allowed, the judgment and decree for the specific performance though has been set aside, by the Appellate Court but has granted the alternative decree for the return of sum of Rs. 50,000/-.
2. It may be relevant to mention here that out of the above, 8 kanals and 18 marlas of land has been purchased by respondent No. 4, during the pendency of the suit. Anyhow, the learned Court of appeal, has formed the view that Bagh All and Lal Masih, have not been able to prove the payment of the balance consideration amount, because, earlier it was the case of the appellant, that Muhammad Jamil and Muhammad Sarwar, were present at the time when the consideration amount of Rs. 32,500/- is paid; but these witnesses have not succeed in the present proceedings, after the setting aside of the ex parte decree
3. Learned counsel for the appellant contends that Jamil and Sarwar had won over by the respondents and Bagh Alf and Lal Masih, were also present at the time, when the balance consideration amount was paid, therefore, their testimonies were good, enough and adequate for proving the consideration. It is further argued that even if the Court has come to the conclusion that the consideration of Rs. 32,500/-has not been proved, the Court should have granted the decree for the specific performance but subject to the payment of the much amount, which the appellant could not establish.
4. I have heard learned counsel for the parties. In the, earlier statement made by the plaintiff, at the time of the ex parte proceedings, he never mentioned the name of Bagh Ali and Lal Masih; that the balance payment was made in presence of these two, rather it was his case that at that time, Sarwar and Muhammad Jamil were present.
Therefore, these persons were accordingly examined to make the deposition to the above effect.
But after the setting aside of the ex parte decree. They have been examined and the stance taken that they have been won over by the other side. Is not proved. If this was the situation, the appellant could have examined them and if they had deposed against the appellant, permission of the Court shall have been sought to declare them hostile and the cross-examination should have been conducted. Moreover, the conspicuous omission to mention the name of Bagh Ali and Lal Masih in the ex parte proceedings, is very significant and it seems that when actual witness did not come forward to support the appellant, at the final stage, and these two new witnesses were introduced.
There is no receipt of the payment of Rs. 32,500/-, which is most unlikely, because the earlier agreement is in writing and the original was with the appellant, therefure, at the time of making the payment of the balance amount, the requisite endorsement on the back of the document, with the signatures or the thumb-impressions of the vendors, could have been easily done. Even otherwise, though Bagh Ali, has given some details about his presence an witnessing the payment at the relevant time, whereas the statement of Lal Masih is dearthy and inadequate; both the witnesses even otherwise, have not mentioned the date, on which, the balance consideration of Rs, 32,500/- was made and it is vaguely stated to out 16 years ago. From the tenor of their statements, I do not find myself inclined to believe them. This too is the view of the learned Appellate Court, therefore, when the appellant himself has failed to establish the payment of the balance consideration, which has serious reflection upon his readiness and willingness to perform his part of the agreement, under the equity, he cannot seek the specific performance of the agreement, which he himself could not perform.
The argument that the Court should have directed the specific enforcement on the payment of Rs.
32,500/-, if it was not proved, suffice it to say, that no person in equity, can be permitted to take the advantage and premium of his own inequitable action, as the non-payment of the balance consideration was the fault and the violatitib of the agreement, on part of the appellant. He could not enforce the agreement to sell. Resultantly, this appeal has no merits and the same is hereby dismissed.
R.S.A. Dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.