MAULVI ANWARUL HAQ, J.---On 14-4-1988 the appellant filed a suit against the deceased respondent now represented by his legal representatives (hereinafter to be referred to be as the respondent). Since vide the impugned order the learned trial Court had rejected the plaint, we intend to reproduce the contents of the same here. It was stated that the suit land is mentioned in para.1 of the plaint and the respondent owns the Lease Hold Rights while the tenure is Old Grant.
The respondent wanted to sell the suit property and he had laid down the terms subject to which Yousaf Chaudhry son of Ch. Lal Din was to sell the property. A copy of this document described in the plaint as {{URDU TEXT}} was annexed with the plaint.
Before the writing of the said {{URDU TEXT}}the appellant was in negotiation with the respondent directly as well as through Yousaf Chaudhry for the purchase of the said property for about a year.
At different occasions the appellant agreed to pay the price as demanded by the respondent but he would resile and then increase the price. Consequently upon the demand of the appellant, the respondent recorded the said (0.1.1) L) in his own hand, The appellant accepted all the said terms and in token of the said acceptance signed the document and then it was converted into a concluded agreement. In para.6 it was stated that thus an agreement was arrived at between the parties. The terms whereof were as follows.:--
(i) The total. Consideration was settled as five million rupees.
(ii) A sum of Rs.30,000 was to be paid immediately as token money. This amount was paid by the appellant vide pay order, dated 4-2-1988 and deposited in the account of the respondent in National Bank of Pakistan Kachehry Brach, Silakot.
(iii) A sum of Rs.12,50,000 being 1/4th of the consideration was to be paid within one month and a formal writing was to be made and executed after the payment of the earnest.
(iv) The registration charges were to be borne by the respondent while NOC was to be obtained by the appellant and for this purpose a power of attorney was to be executed in favour of the appellant. It was then stated that the appellant has always and is ready and willing to abide by the said terms. Then it was stated that after the writing of the said {{URDU TEXT}}and payment of token money, the appellant met respondent and found that he hhd changed his mind. He wished that the entire amount of consideration be paid immediately in cash. This was not acceptable to the appellant; neither was this term contained in the said conditions of the (w I,, ). It was then abruptly stated that respondent himself contacted the appellant and promised to execute the agreement.
' Thereafter it was stated that the appellant through his counsel gave a notice on 25-2-1988 to the respondent and the said Yousaf Chaudhry. A reply was given by Yousaf Chaudhry but the respondent had not replied and this means that the contents of the notice have been accepted.
Then it was stated that the respondent sent a cheque, dated 23-3-1988 in the sum of Rs.30,000 along with writing, dated 7-4-1988 and has returned the earnest. It was then complained that the appellant has now come to know that the respondtlt, in violation of the said agreement is proceeding to sell the property to another person on different conditions. The respondent has been called upon to sell the property to the appellant upon the, terms contained in the {{URDU TEXT}}, dated 4-2-1988 but he has refused a week ago. With these averments a decree for possession of the suit property by specific performance in accordance with the conditions contained in The {{URDU TEXT}}dated 4-2-1988 and on the terms contained in para. 6 of the plaint was sought. An injunction was also prayed for restraining the respondent from selling the land or the structures to anyone else.
2. On 5-12-1988 the respondent filed a written statement. He stated that he has entered into an agreement to sell the property in favour of Mian Baber Iqbal and others for consideration of Rs.32,00,000 and has delivered the possession to the said persons. He denied having executed the document, dated 4-2-1988 in favour of the appellant. According to him no consideration was passed from the appellant to the respondent in pursuance of the said writing. It was then stated that the said writing is not an agreement to sell at all. It was pointed out that there is no mention of any property, which was intended to be sold in the said document. He denied the authority of Yousaf Chaudhry to enter into any such transaction himself or on behalf or the respondent.
According to him there was neither any proposal made by the appellant nor there was any acceptance by him. The said para.6 was stated to be wrong and was denied. Regarding the sending of cheque it was stated that it was sent as a matter of abundant caution.
3. We may note here that the copy of the said cheque and the writing, dated 7-4-1988 was also appended with the plaint and the writing is to effect that the cheque is being sent of the amount which was paid in the account of the respondent without his knowledge or consent.
4.' On 1-11-2000 an application was filed by the respondent stating that the plaint does not disclose a cause of action. No agreement to sell has been alleged to be executed between the parties. The suit has been filed on the basis of said {{URDU TEXT}}in favour of Yousaf Chaudhry. Admittedly Yousaf Chaudhry was not an attorney of the respondent and even the plaint does not disclose any agreement having been made by the said Yousaf Chaudhry regarding the said property in favour of the appellant. A written reply was filed. Vide order, dated 5-12-2000, the learned trial Court rejected the plaint.
5. Learned counsel for the appellant has argued that the order has been passed in violation of the settled law that for purposes of Order VII Rule 11, C.P.C. Only the plaint is to be examined. He has cited the case of Abdul Waris v. Muhammad Yousaf (PLD 1997 SC 366), Haji Mitha Khan v Muhammad vounas and 2 others (1991 SCM R 2030) and Mushtaq Ahmad Khan v. M.C.F.
Corporation Ltd. (PLD 1989 Lahore 320). Further contends that upon a complete reading of plaint it does disclose a cause of action inasmuch as a concluded agreement stands pleaded and the appellant as a right to prove the facts stated in the plaint. While countering the observations of the learned trial Court a concluded agreement is not disclosed in the plaint he cites the case of Major (Retd.) Ahmad Khan Bhatti v. Mst. Masooda Fatimi (PLD 1981 Karachi 398). He has also cited several authorities to demonstrate that even a simple receipt or oral agreement has been enforced by the Courts.
6. Learned counsel for the respondent, on the other hand, contends that the plaint nowhere discloses an agreement either between the respondent and the appellant or for that matter between Yousaf Chaudhry and the appellant on the basis of the {{URDU TEXT}}He further contends that as stated in the plaint, according to the appellant himself, the intention of the parties was that upon the payment of the earnest money of rupees 12.5 million, the formal agreement of sale was to be executed between the parties and admittedly and said stage never arrived. It has also been contended that the said {{URDU TEXT}}only defines the parameters within which Yousaf Chandury was given some authority but the plaint does not at all disclose that Yousaf Chaudhry had ever exercised the said authority within the timeframe noted in the said.
7. We have examined the trial Court records with the assistance of the learned counsel for the parties. We have already reproduced the entire material contents of the plaint above except the formal paragraphs. Now it is in para.3 that since the respondent wanted to sell the land he gave authority to Yousaf Chaudhry to settle the matter of sale on the conditions stated by him in the said {{URDU TEXT}}It has then been stated in para.4 that since the appellant was in negotiation either directly or through Yousaf Chaudhry with the respondent, it was upon the demand of the appellant that said {{URDU TEXT}}was recorded. The appellant has then stated that terms in para.6 as he understood.
8. We deem it necessary to reproduce the said {{URDU TEXT}}hereunder:-- {{URDU TEXT}} ' This document, dated 4-2-1988 also appears to bear the signature of Major Pervez Iqbal (appellant).
9. Now upon a bare reading of the said document, which accompanies the plaint and according to the dictum of the Hon'ble Surpeme Court in the case of S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan (Moir) (2002 SCM R 338) can be looked into, this document does not at all state that the respondent even intended to sell the "kothi" on the said terms to the appellant. Upon a plain reading the document constitutes an arrangement between the respondent on the one hand and Yousaf Chaudhry on the other, whereby upon the terms stated and to be complied within one month Yousaf Chaudhry was authorized to negotiate the matter.
10. Now it is the stated case of the appellant in the plaint, that the authority to act in the matter vested in Yousaf Chaudhry on the terms stated iii the afore-referred document. We do not find any mention of any payment of any token money. The document states in plain terms that the consideration will be Rs.5 million. The earnest money will be Rs.12.50 lac and the balance will be cleared within one year of the payment of the earnest money. There is a specific reference that a document will be executed when the earnest money will be received. Now it is stated that a sum of thirty thousand rupees was paid through the pay order, dated 4-2-1988 deposited in the account of the respondent. The receipt of the same date annexed with the plaint narrates that the said pay order has been received by Yousaf Chaudhry who has issued the receipt.
11. There is not a word in the entire plaint that the appellant ever approached the respondent or the said Yousaf Chaudhry to make the payment of the earnest amount mentioned in the {{URDU TEXT}} within or beyond the period of said one month stated in the said document. Now it is in the said document and the plaint itself that it was upon the payment of the earnest amount of Rs.1.50 million that the agreement was to be executed.
12. We have examined the said case of Major (Retd.) Ahmad Khan Bhatti being relied upon by the learned counsel for the appellant. In the said case his Lordship interpreted a receipt executed by the vendor himself upOn the receipt of a sum of Rs.5,000 and it was observed that the document had been executed by the defendant in favour of the said plaintiff acknowledging the receipt of Rs.5,000 against the total consideration of Rs.4,00,000. His Lordship recapitulated some case-law on the subject and the rule was found to be as follows:-- "It appears to be well-settled by the Authorities that if the documents or letter relied on as constituting a contract contemplate the execution of a further contract between the parties it is a question of construction whether the execution of further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transactions already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the iaw does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored."
13. Now it will be seen that in the present case the respondent is settling the matter not with the appellant, but is setting down the conditions upon which Yousaf Chaudhry is to negotiate the matter. The execution of the further document referred to in the (e--:#1,,L) and also in para.6 of the plaint does not at all express the desire rather it constitutes a condition of the bargain to be settled by the said Yousaf Chaudhry. It was only upon the payment of earnest money that agreement was to come into existence and document was required to be recorded in writing. Another aspect of the case is that the time fixed for the payment of the balance amount and for the non- performance of which condition of penalty was prescribed was to commence from the payment of the earnest money. We have been able to dig out a judgment delivered by the High Court of Bombay Govind Laxman Gokhale v. Harichand Macharam (50 Indian Cases 403). In this case a document executed between the vendor and the vendee came up for interpretation. The document began with the recital that the defendant in the case, agrees to sell to the plaintiff in the case, the suit property for Rs.2,15,000. Following was one of the conditions set down in the document:--
(1) The bargain paper for the sale of the said immovable property shall be made through Vakeel within two days from this date and at the time of making the bargain paper I am to receive from you by way of earnest money in respect thereof Rs.10,000 that is to say, you are to pay the same to me and as regards Rs.2,05,000 being the balance, you are to pay the same to me at the time of execution of the sale-deed by me.
13. Applying the same rule reproduced above by us his Lordship found that it was not the expression of a mere desire that a bargain paper was to be executed and that it was a condition of the bargain itself and consequently it was not a concluded agreement.
14. In the present case going by the contents of the plaint itself, no agreement either between the respondent and the appellant or between Yousaf Chaudhry and the appellant within the meaning of the said (41,,,,,1).4) stands pleaded.
15. We do agree with the learned counsel for the appellant that for the purpose of Order VII Rule 11, C.P.C. Only the plaint is to be examined and this is what the learned trial Court has done. And the matter has been examined by us also keeping in view the said rule. The R.F.A. Is accordingly dismissed with no order as to costs.
16. The records of the learned trial Court be remitted back immediately.