' SAIYED SAEED ASHHAD, J.--- This appeal by leave of this Court has been directed against the judgment of the Lahore High Court, dated 23-5-2002 in Civil Revision No,2805 of 1996. By the impugned judgment, the Lahore High Court has upheld the judgment of the Additional District Judge, Gujranwala dated 22-9-1996 in Civil Appeal No,131 of 1995. By the aforesaid judgment dated 22-9-1996, the learned Additional District Judge, Gujranwala had set aside the judgment of the trial Court dated 19-6-1995 dismissing the suit, and decreeing the same.
2. The brief facts leading to this civil appeal are that Fayyaz Ahmad, Riaz Ahmad (sons) Mst.
Mumtaz Begum (widow), Naseem Akhtar, Mst. Talat Ara, Mst. Asmat Ara, Mst. Nuzhat Mahmood and Mst. Sabahat Rana (daughters) of deceased Mahmood Ahmad agreed to sell agricultural land measuring 260 Kanals and 19 Marlas in different Khasra numbers situated in Village Mangat, Tehsil Kamoke District Gujranwala (hereinafter referred to as "the demised land") along with running tubewell having engine of 18 HP and standing trees to Muhammad Rafique son of Khair Din and Ashiq Ali son of Murad Ali, respondents Nos.1 and 2 in this appeal for a consideration of Rs,50,000 vide agreement dated 26-9-1972 out of which a sum of Rs,2,000 was paid by the said Muhammad Rafique and Ashiq Ali and the remaining amount of Rs,48,000 was to be paid at the time of execution of sale-deed, which was to be executed on or before 26-12-1972. The said agreement was executed by Fayyaz Ahmad and Riaz Ahmad (hereinafter referred to as "the vendors") on their behalf and also purportedly to be on behalf of the female co-sharers i,e, mother and sisters. Sale- deed as per terms of the agreement could not be executed on 26-12-1972 and the vendors sold the demised land to the appellants vide sale-deed dated 27-12-1972. On 9-1-1973, respondents Muhammad Rafique and Ashiq Ali filed a suit for specific performance of the contract, dated 26-9- 1972 bearing No,384 of 1994 in the trial Court against the vendors and subsequent purchasers of the demised land being respondents Nos.1 to 18. This suit was resisted by the vendors raising certain preliminary objections. Written statement on their behalf was filed by Fayyaz Ahmad as attorney of the remaining vendors. On facts, it was specifically stated that the agreement dated 26-9-1972 was executed solely by. Fayyaz Ahmad and Riaz Ahmad, respondents Nos.3 and 4 herein and they were only bound by the said agreement. It was also stated that respondents Nos.5 to 10, the female vendors had not entered into agreement and were not bound by the said agreement. It was also stated that Muhammad Rafique and Ashiq Ali themselves did not comply with the requirement for execution of sale-deed on or before 26-12-1972 as a result of which the said agreement expired and Fayyaz Ahmad and Riaz Ahmad were free to dispose of the demised land to any other person.
3. The trial Court on the basis of the pleadings of the parties framed the following issues:-- "(1) Whether the plaintiffs are estopped to file this suit? OPD
(2) Whether the defendants Nos.1 to 8 agreed to sell the suit land to the plaintiffs? OPP ' If Issue No,2 is proved, whether the plaintiff fulfilled their part of the contract?
(3) Whether the defendants Nos.3 to 8 are not bound by the agreement in question? If so, its effect?
OPP
(4) Whether the plaintiffs are entitled to get a decree for the enforcement of the agreement of sale dated 26-9-1972 against defendant No,17 if so, on what terms? OPD
(5) Whether the defendants Nos.9 to 27 are the bona fide purchaser for value and without notice? If so, its effect? OPD
(6) Whether the suit has become infructuous and the plaintiffs failed to fulfill their .Part of the contract? OPD
(7) Whether the suit is false, frivolous and vexatious and the defendants are entitled to get special costs from the plaintiffs? If so, to what extent? OPD
(8) Relief."
4. In support of their case, the respondents/plaintiffs examined five witnesses and produced documents as Exh.P.1 to Exh.P.13 while the appellants/defendants examined four witnesses to prove their case. The trial Court on the basis of the evidence and documents produced before it, decided issues Nos.1, 3, 5, 6, 7 in favor of the appellants/defendants while Issues Nos.2 and 4 were decided in favor of the respondents/plaintiffs. On the basis of its aforesaid finding, the trial Court came to the conclusion that the suit filed by the respondents/plaintiffs was fictitious and dismissed the same.
The trial Court further observed that the appellants/defendants had failed to produce evidence which would enable them to claim special costs, therefore, refused to grant special costs as prayed for by them.
5. Feeling aggrieved and dissatisfied with the judgment and decree of the trial Court, the respondents filed appeal being Civil Appeal No,131 of 1995. This appeal was allowed by the learned Additional District Judge, Gujranwala setting aside the judgment and decree of the trial Court and decreeing the suit of the respondents in terms of the prayer sought by them in their plaint ordering specific performance of the agreement dated 26-9-1972 and directing them to deposit the remaining sale consideration of Rs,48,000 within a period of one month from the date of judgment.
Sale-deed executed in favor of the appellants was declared to be nullity having no effect.
Appellants feeling aggrieved and dissatisfied by the judgment of the Appellate Court assailed the same before the Lahore High Court by way of Civil Revision No,2805 of 1996 which was dismissed vide judgment, dated 23-5-2002. Appellants felt aggrieved and dissatisfied with the judgment of the Lahore High Court in upholding the judgment of the Appellate Court and assailed the same before this Court by way of Civil Petition No,2083-L of 2002 which was allowed vide order, dated 8- 7-2002 and leave to appeal was granted to consider:-- "(1) Whether in the facts and circumstances of the case, there was ratification, implied or otherwise, on behalf of other co-sharers of the suit property of the agreement to sell (Exh.P.7) executed by the respondents Nos.3 and 4?
(2) Whether the impugned judgment of the High Court affirming the judgment and decree by the Appellate Court was not sustainableat law?"
6. We have heard the arguments of Ch. Hameed-ud-Din, Senior Advocate Supreme Court on behalf of the appellants and Mr. Gulzarin Kiani, Advocate Supreme Court, for respondents Nos.1 and
2. Remaining respondents Nos.3 to 11 were proceeded against ex parte. We have also perused the material on record and the case-law referred to by the learned counsel for the parties.
7. Ch. Hameed-ud-Din, Senior Advocate Supreme Court appearing for the appellants vehemently assailed the judgments of the First Appellate Court and the High Court in revision and submitted that both the Courts had committed grave illegality in setting aside dismissal of the suit by the trial Court and decreeing the suit of respondents Nos.1 and 2. Elaborating his arguments, he submitted that the First Appellate Court and the High Court had based their judgments on misreading and misconstruing the evidence on record; placing reliance on extraneous material; drawing inferences which were not warranted either from the material on record or from the provisions of law applicable to the facts and circumstances of the case; and further that the conclusions drawn by them were clearly in disregard and in contravention of the provisions of the Contract Act and the Specific Relief Act. He further submitted that both the Appellate Court and the High Court had misinterpreted and misapplied the provisions of the principle of ratification as provided in section 196 of the Contract Act and had completely failed to take into consideration that initially when the agreement to sell dated 26-9-1972 was executed by respondents Nos.3 and 4, admittedly, they were not the agents of the female co-sharers of the demised land namely Mst. Mumtaz Begum, Mst. Naseem Akhtar, Mst. Asmat Ara, Mst. Nushat Mehmood and Mst. Sabahat Rana, mother and sisters of respondents Nos.3 and 4 as they had not executed any power of attorney in favor of the two respondents either severally or jointly and in view of their relationship with the female co- sharers as sons and brothers; they had no authority under the law to execute agreement of sale on their behalf.
8. Mr. Gulzarin Kiani, Advocate Supreme Court on the other hand fully supported the judgments of the Appellate Court and the Lahore High Court and submitted that the pronouncements made by both of them were in consonance with the evidence and material on record as well as in accordance with the provisions of law. He further submitted that the conclusions drawn by the two Courts that the agreement to sell dated 26-9-1972 stood proved as against the female co-sharers in view of the principle embodied in section 196 of the Contract Act; that the time was not of essence of the contract and the fact that the sale-deed could not be executed on or before 26-12- 1972 would not deprive respondents Nos.1 and 2 of their right to purchase the demised land; that both the Courts below had also rightly decided that respondents Nos.3 and 4 who had with mala fide intention with a view to gain undue advantage failed or intentionally omitted to perform their part of the agreement whereas respondents Nos.1 and 2 were always ready and willing to perform their part of the agreement and that the two Courts had rightly come to the conclusion that respondents Nos.1 and 2 were not bona fide transferees for value as from the evidence on record, it was established that they had knowledge of execution of agreement to sell dated 26-9-1972 by respondents Nos.3 and 4 on their behalf as well as on behalf of the female co-sharers and in spite of such knowledge, they with a view to deprive respondents Nos.1 and 2 of their entitlement to have the property sold in their favor proceeded to purchase the demised land. Mr. Gulzarin Kiani, Advocate Supreme Court, further submitted that even if for the sake of arguments, it was found that the female co-sharers. Were not bound by the agreement to sell dated 26-9-1972, respondents Nos.1 and 2 could enforce the agreement to sell against respondents Nos.3 and 4 to the extent of their shares in the demised land by way of partial specific performance as provided by section 15 of the Specific Relief Act. In support of his first contention, he placed reliance on the cases of Muhammad Yaqoob v. The Settlement Authority and others 1973 SCM R 484 and Surendra Nath Roy v. Kedar Nath Bose and others AIR 1936 Cal.
87. In support of his second contention, he placed reliance on the cases of Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1; Ashfaque Ahmad Sheikh v. The State PLD 1972 SC 39; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Zaheer Ahmad and another v. Abdul Aziz and others 1983 SCM R 559; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCM R 544; Momtazul Karim and others v. Abu Hussain and another 1970 SCM R 816. In support of third contention, reliance was played on Muhammad Ashraf v. Ali Zaman and others 1992 SCM R 1442; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCM R 2189; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465 and in support of fourth contention, reliance was placed on Mrs. Anwara Chowdhury v. M. Majid and others PLD 1964 SC 807; Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others 1993 SCM R 804; Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others PLD 1974 BJ 25 and Abdul Khaliq v. Anis Ahmad and others 1988 MLD 2904.
9. Ch. Hameed-ud-Din, Advocate Supreme Court in reply to the contention of Mr. Gulzarin Kiani, Advocate Supreme Court that even if respondents Nos.1 and 2 failed to establish that the agreement to' sell dated 26-9-1972 had no binding effect on the female co-sharers and they could not be forced to execute the sale-deed in pursuance thereof, then the agreement to sell dated 26- 9-1972 could be enforced against respondents Nos.3 and 4, submitted that the contention was devoid of force in view of the fact that the agreement to sell dated 26-9-1972 was complete and indivisible agreement/contract wherein the shares of the vendors were not specified and it could not be interpreted as consisting of two distinct or separate agreements so as to be enforceable as against some of executants. In support of his above contention, he placed reliance on the case of Wali v. Manak Ali PLD 1965 SC 651. His further submission was that sections 14 to 17 of the Specific Relief Act which deal with partial performance of the contract did not permit the Court to make a new contract for the parties and contended that if the agreement, dated 26-9-1972 was ordered to be partially enforced against respondents Nos.3 and 4 only, then it would amount division or modification of the agreement making out a new agreement or contract. In support of his above contention, he placed reliance on the case of Abdul Aziz Sahib v. M. Abdul Samad Sahib and another AIR 1937 Mad. 596 and Mrs. Anwara Chowdhury v. M. Majid and others PLD 1964 SC 807.
10. With regard to the contention that usually in agreements to sell relating to immovable properties, time was not of essence of the contract and failure to execute the agreement to sell within the stipulated period would not frustrate the agreement to sell or give right to any one of the parties to bring an end to the agreement, he submitted that there was no hard and fast rule that in every agreement or contract of immovable property, time would not be of essence and this question would be dependent on the language used in the agreement/contract, the intention of the parties to be gathered from the terms and conditions of the agreement/contract and the attending circumstances namely, the nature of the property, the place where the property is situated, the object or purpose to which the property can be put to use, the possibility of accelerated increase or decrease in the value of the property, etc. In support of his above contention, he placed reliance on the cases of (i) Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 1998 SCM R 2485 and Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC
430. He further submitted that the pronouncements of the Appellate Court and the Lahore High Court that the act of respondents Nos.3 and 4 purporting to execute the agreement to sell, dated 26-9-1972 on behalf of the female co-sharers was ratified, firstly by statement made by Mian Masood Ahmad, Advocate in the earlier suit filed by respondents Nos.1 and 2 praying for permanent injunction against respondents Nos.3 to 10 restraining them from disposing of the demised land in favor of persons other than respondents Nos.1 and 2, to the effect that the defendants therein i,e, respondents Nos.3 to 10 would execute the sale-deed in favor of respondents Nos.1 and 2 on or before 26-12-1972; and secondly, when all the female co-sharers executed three different powers of attorney in favor of respondent No,3 Fayyaz Ahmad authorizing him to execute the sale-deed in respect of the demised land were clearly in disregard of the provisions of section 196 of the Contract Act as both the Courts had failed to take into consideration the very pertinent fact that no relationship of principal and agent existed between the female co-sharers and respondents Nos.3 and 4 as a result of which they had no authority, whatsoever, to execute an agreement to sell in respect of the shares of the female co-sharers so as to legally bind them under the agreement dated 26-9-1972 and consequently, the same could not be ratified. According to Ch. Hameed-ud-Din, Advocate Supreme Court both the Appellate Court and the Lahore High Court have also erred in placing reliance on the cases of Muhammad Yaqoob v. The Settlement Authority and others 1973 SCM R 484 and Surendra Nath Roy v. Kedar Nath Bose and others AIR 1936 Cal. 87 as the facts and circumstances in the cited cases were altogether different and the pronouncements made therein would have no application to the facts and circumstances of the present case. It is the case of respondents Nos.1 and 2 that the agreement to sell dated 26-9-1972 which was executed by respondents Nos.3 and 4 only and none of the female co-sharers of the demised land had signed or thumb-impressed the same is to ratify as against the female co-sharers. Mian Masood Ahmad, Advocate made a statement in Court in an earlier suit filed by respondents Nos.1 and 2 against respondents Nos.3 to 10 for perpetual injunction restraining respondents Nos.3 to 10 from disposing of the demised land to any other person, to the effect that respondents Nos.3 to 10 would execute the sale-deed in favor of respondents Nos.1 and 2 in respect of the demised land. It is to be observed that Mian Masood Ahmad, Advocate did not produce any document or writing bearing the signatures or thumb- impressions of the female co-sharers authorizing him to make such a statement in Court on their behalf. From perusal of the record, it is to be noted that Mian Masood Ahmad, Advocate was not appointed as counsel/attorney by the female co-sharers to represent them in the Court of Civil Judge, Gujranwala in the earlier suit filed by respondents Nos.1 and 2. Mian Masood Ahmad, Advocate had filed two Wakalatnamas dated 6-11-1972 and 18-11-1972 which bear the signature of respondent No,3 only and the same were neither signed nor thumb-impressed by the female co- sharers. In the circumstances, the Appellate Court and the Lahore High Court erred in holding that Mian Masood Ahmad, Advocate was duly appointed or authorized agent or attorney of the female co-sharers and his statement in Court that the defendants i,e, respondents Nos.3 to 10 would execute the sale-deed in favor of respondents Nos.1 and 2 in respect of the demised land did not have any legal force or sanction so as to bind the female co-sharers to execute a sale-deed. The next point which requires consideration is whether execution of three different powers of attorney by the female co-sharers in favor of respondent No,3 authorizing him to sell, dispose of or alienate the demised land in favor of any party would amount to validation of the agreement to sell dated 26-9-1972 clothing it with legal sanction and force is also devoid of force. It is to be observed that ratification of an act as required by section 196 of the Contract Act could be done by the person on whose behalf an act has been done by the agent without having authority to perform such act and necessity requires that the person ratifying the act should be in full and complete knowledge of the case and it is the duty of the person claiming ratification of the act done by him on behalf of the principal to establish beyond any doubt that the person who was to ratify the act had been fully explained the facts and circumstances of the case, the consequences thereof as well as of ratification or refusal to ratify but there is no material on record to establish that such was done.
The various powers of attorney executed by the female co-shares were not produced in evidence in the trial Court on account of which it is impossible to find out whether there was any mention of the agreement to sell, dated 26-9-1972 and whether the female co-sharers had expressly stated therein that they would be bound by the said agreement to sell. In view of the above, neither the statement made by Mian Masood Ahmad, Advocate in the Court nor the execution of powers of attorney by the female relations in favor of respondent No,1 on 20-12-1972 authorizing him to dispose of, sell or alienate the demised property would be of any help in establishing that the female co-sharers had ratified the agreement to sell dated 26-9-1972 and that it stood validated.
In the circumstances, the female co-sharers were under no compulsion to execute sale-deed in favor of respondents Nos.1 and 2 pertaining to the demised land and the agreement to sell dated 26-9-1972 could not have been specifically enforced against them.
11. The next point which requires determination is whether the agreement, dated 26-9-1972 could have been partially enforced against respondents Nos.3 and 4 in respect of their respective shares in the demised land. Partial specific performance of a contract can be ordered by a Court in view of the provisions of sections 14, 15 and 16 of the Specific Relief Act as provided by section 17 of the
(ibid) Act. It will be useful to reproduce section 17 of the Specific Relief Act which is as under:-- "17. Bar in other cases of specific performance of part of contract.---The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections."
12. The three preceding sections mentioned in these sections- are 14, 15 and 16 which read thus:-- "14. Specific performance of part of contract where part unperformed is small.--- Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may at the suit of either party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency.
15. Specific performance of part of contract where part unperformed is large.--- Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform, specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant.
16. Specific performance of independent part of contract.--- When a part of contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract, which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part."
13. Partial specific performance can be ordered only in the cases strictly falling within the provisions of above sections 14, 15 and 16. Only those contracts cane be specifically enforced which are capable of division then the part which can be specifically performed can be ordered to be specifically enforced. However, if an agreement or contract is such which is an indivisible agreement/contract consisting of one single transaction not permitting splitting up of the transaction, then such a case would not be covered by sections 14, 15 and 16 of the Specific Relief Act and the agreement or contract could not be ordered to be partially specifically performed.
Respondents Nos.3 and 4 had executed agreement/contract to sell the demised land on their behalf as well as ostensibly on behalf of six female co-sharers who were their mother and sisters.
As already held above, female co-sharers were not bound by the said agreement to sell as they had neither signed or thumb-impressed the agreement to sell nor there was a valid or proper ratification by them of the agreement to sell. From a perusal of the agreement dated 26-9-1972, it can be inferred that the intention of respondents Nos.3 and 4 was to dispose of entire demised land to respondents Nos.1 and 2, of course, subject to confirmation and or ratification of the agreement by the female co-sharers, which was not forthcoming. The agreement in question, thus, consisted of single indivisible transaction which could not be divided or splitted up into two parts i,e, between respondents Nos.1 and 2 and respondents Nos.3 and 4 and the other between respondents Nos.5 to 10 the six female co-sharers and respondents Nos.1 and 2. Therefore, the present case does not fall within the scope of either sections 15 or 16 of the Specific Relief Act. It is to be noted that respondents Nos.1 and 2 filed a suit against respondents Nos,3 to 10 being Suit No,384 of 1994 in the Court of Civil Judge, Gujranwala for specific performance of entire agreement, dated 26-9-1972 knowing full well that respondents Nos.5 to 10 the female co-sharers were not parties to the said agreement and were not legally bound to dispose of or sell their joint holding in the demised land. In para.2 under the heading "on facts" of the written statement filed by respondents Nos.3 to 10, it was categorically stated that the agreement dated 26-9-1972 was executed by respondents Nos.3 and 4 on their behalf only and not on behalf of respondents Nos.5 to 10, the female co-sharers who were not bound by the said agreement. However, in spite of such categorical statement, respondents Nos.1 and 2 did not make any prayer for amendment of the plaint seeking partial performance of the agreement dated 26-9-1972 to the extent of the shares of respondents Nos.3 and 4. In somewhat similar circumstances, this Court in the case of Alamdar Hussain v. Nazir Hussain 2004 SCM R 595 refused partial performance of the contract under section 15 of the Specific Relief Act as the plaintiff therein in spite of being aware of the impediment in the specific performance of entire contract continued to pursue his suit for specific performance of the entire contract instead of seeking partial performance to the extent of the shares of respondents Nos.3 and 4 in the demised land.
14. It is also to be noted that though the shares of respondents Nos.3 and 4 and respondents Nos.5 to 10 and female co-sharers were defined/specified in the ratio of 5/24 and 19/24 respectively yet the share of each of the owner/sharer was not separately identifiable as it had not been partitioned by metes and bound. It was not possible to point out the exact piece or portion of the demised land which formed part of the share of the owners/sharers. The demised land consisted of different Khasra numbers and was jointly owned by respondents Nos.3 to 10 as per recitals in the agreement to sell dated 26-9-1972. Respondents Nos.3 to 10 were not shown to be owners of a defined portion or piece of land. In the presence of such facts, the agreement to sell could not be said to be consisting of two distinct separable contracts independent of each other but was one single transaction/contract intended to be dealt with as a whole and not in piecemeal. In the circumstances, partial specific performance cannot be granted in respect of the shares of respondents Nos.3 and 4. The case of Wali v. Manak Ali (supra) relied upon by Ch. Hameed-ud-Din, Advocate Supreme Court fully supports the above proposition as this Court pronounced therein that where there was only one contract between the vendees and the vendors and if the shares of the vendees were specified, as long as contract was one, section 17 of the Specific Relief Act would bar splitting up of the transaction. The case of Mrs. Anwara Chowdhury v. M. Majid (supra) relied upon by Mr. Gul Zarin Kiani, Advocate Supreme Court in support of his contention that the agreement was capable of partial specific performance against respondents Nos.3 and 4 is distinguishable as the facts and circumstances of the cited case were absolutely different from the facts and circumstances of this case.
15. There is yet another aspect which will be an impediment in the way of partial performance of the agreement to sell dated 26-9-1972 when it was not possible to clearly ascertain the part or portion of the demised land which belonged to respondents Nos.3 and 4 to the extent of their share of 5/24, partial performance would not be possible as it would not be possible for the parties to specify or identify the portion to the extent of 5/24 out of the demised land. Besides, respondents Nos.5 to 10 the female co-sharers were holder of the majority share in the demised land, which would not be the subject-matter of partial performance of the agreement dated 26-9-1972, therefore, it would cause prejudice to the female co-sharers and would operate to their disadvantage. It may be mentioned that there is no evidence as to whether demised land consists of one category or of different categories/classes. Furthermore, bifurcation or partitioning the portion of respondents Nos.3 and 4 to the extent of 5/24 would reduce the value of the remaining portion of the demised land owned by female co-sharers. Handing over of 5/24 share to respondents Nos.1 and 2 would also cause serious problems to the female co-sharers as strangers would be occupying portion of the demised land adjoining their portion. Grant of relief of specific performance is a discretionary relief. In granting discretionary relief, Court has to act equitably in such a manner that no prejudice, loss or injury is caused to any other person. Partial performance of the agreement dated 26-9-1975, even if legally possible would be refused on the ground that the same would occasion prejudice, damage, loss and would be disadvantageous to respondents Nos.5 to 10 the female co-sharers.
16. In view of the conclusion that the agreement dated 26-9-1972 was not capable of specific performance either in its entirety against respondents Nos.3 to 10 or partial performance against respondents Nos.3 and 4, it is not necessary to consider and discuss the issues whether the time was of essence of the contract and as to which of the parties had committed default in not executing the sale-deed as per terms of the agreement, dated 26-9-1972.
17. It was submitted by Mr. Gul Zarin Kiani, Advocate Supreme Court that the concurrent findings of the Appellate Court and the High Court could not be interfered with by this Court on the ground that on the basis of evidence and material on record, a different view was possible. He further submitted that interference could be made only when the decisions were found to be erroneous or based on no evidence at all or upon any manifest misreading or misconception of evidence which was not so in the present case. In support of his contention, he placed reliance on the case of Muhammad Sharif v. Mst. Fajji (supra). Incidentally, Ch. Hameed-ud-Din, Advocate Supreme Court also placed reliance on the said case in support of his contention while arguing that the decisions of the Appellate Court and the High Court were not only based on misreading and misconstruing the evidence on record but also were in violation of the provisions of law.
18. While dealing with the question of ratification of the agreement to sell dated 26-9-1972 on behalf of female co-sharers, it has been observed that the pronouncements to the effect that the agreement to sell dated 26-9-1972 was properly ratified when Mian Masood Ahmad, Advocate made a statement in Court in an earlier suit that respondents Nos.3 to 10 would execute sale-deed in favor of respondents Nos.1 and 2 in respect of the demised land was based on complete misconstruing the evidence inasmuch as the female co-sharers had not signed the Wakalatnama filed by Mian Masood Ahmad, Advocate and he was not representing them as attorney or authorized agent or pleader as contemplated by Order II of the C.P.C. It was also observed that the said pronouncements were in violation of the provisions of sections 196 and 198 of the Contract Act as there was no material on record to indicate that the female co-sharers had ever been informed of the execution of agreement to sell dated 26-9-1972 on their behalf which was a necessary condition for a valid ratification. In the circumstances, the contention of Mr. Gulzarin Kiani, Advocate Supreme Court that this Court would not interfere with the concurrent findings of the Appellate Court and the High Court does not hold good inasmuch the finding of the Appellate Court and the Lahore High Court relating to the ratification of the agreement dated 26-9-1972 by female co- sharers was based on no evidence at all. Reference is placed on the case of Alamdar Hussain v.
Nazir Hussain 2004 SCM R 595 on the observation that concurrent findings of two Courts could be interfered with in revision if found to be based on gross misreading, non-reading or misconception of evidence available on record. By way of analogy, it can be said that the said power of interference can be exercised while hearing appeal.
19. For the foregoing reasons, facts and discussions, this appeal is found to carry weight and merits consideration. Accordingly, it is allowed, judgments of the High Court and the Appellate Court are set aside and that of the trial Court is restored.
19A. No order as to costs.