FAZAL-E-MIRAN CHAUHAN, J.--- This revision petition is directed against the order, dated 15-4- 2002 and 11-10-2004, respectively, passed by the learned trial Court and the learned lower Appellate Court.
2. The facts giving rise to the present revision petition are that the respondent (plaintiff) filed a suit for specific performance of contract, dated 9-7-1995, stating therein, that plaintiff entered into an agreement to sell regarding property in question with petitioner No.1, father of petitioner No.2 (the minor son), for a consideration of Rs.5,10,000. He paid Rs.1,10,000 as earnest money. It is also pleaded that, the agreement to sell was executed with the consent of petitioner No.2 (defendant No.2), the minor son, as he had also put his signature on the agreement at the time of its execution.
The sale-deed was to be executed on 31-10-1995 by the mother of petitioner No.2. During the intervening period, the petitioner No.1 was required to complete the document of ownership, thereafter, the plaintiff approaches the petitioner and requested him to perform his obligation but he showed his inability to do so. The respondent served the petitioner with a legal notice, dated 24- 10-1995 requesting him to execute the sale-deed in his favour. In reply to this legal notice, the petitioner, vide letter, dated 30-10-1995 informed the respondent that the mother of the minor is not ready to execute sale-deed in favour of the respondent and he may take back the earnest money paid at the time of agreement to sell. The respondent/ plaintiff instead of receiving the earnest money filed the present suit.
3. The petitioner-defendant defended the suit by filing written statement contending therein that no doubt agreement to sell was executed with the respondent/plaintiff, but at the same time, he was informed that mother of petitioner, who is the guardian of the property of the minor is competent to transfer the property and if she agrees the sale-deed will be executed in favour of the respondent-plaintiff.
4. That the learned trial Court after framing numerous issues and after recording evidence and findings on issues, proceeded to dismiss the suit of the plaintiff.
5. The respondent, filed appeal before the District Judge, Lahore, which was finally heard and decided by Mr. Khurshid Anwar Rizvi, Additional District Judge, Lahore, who vide his judgment and decree, dated 11-10-2004, reversed the findings on Issue No.10 by holding that, since there is a contract between the petitioner No.1 and the respondent/ plaintiff that if the petitioner No.1 fails to execute the sale-deed in favour of the respondent, he shall be entitled to receive double of the amount paid by him as earnest money. Thus, the learned lower Appellate Court, accepted the appeal partly with cost and held that respondent was entitled to recover, an amount of Rs.2,20,000 from petitioner No.1 i.e. Double of the earnest money.
6. The respondent despite the service has chosen not to appear in the case. He is proceeded ex parte.
7. I have given my anxious consideration to the arguments of the learned counsel for the petitioner and gone through the documents placed on the record. Respondent, knowing that petitioner No.1 was not legally authorized to sell, alienate or transfer the house of petitioner No.2, entered into an agreement to sell with the petitioner No.1 and paid Rs.1,10,000 as an earnest money. On the refusal of petitioner No.1 to execute the sale-deed, the respondent served a legal notice calling upon him (petitioner No.1) to execute the sale-deed, either himself or through the mother of the minor, who is legally authorized to supervise and to act on behalf of the minor vis-a-vis his property. The petitioner No.1 in reply to the legal notice, served upon him, explained the legal position to the respondent, informing him that the mother of the minor is not prepared to transfer the property in specific performance of the agreement, therefore, he offered respondent No.1 to receive back the earnest money of Rs.1,10,000 paid by him as earnest money.
8. The respondent-plaintiff had himself chosen to file suit for specific performance instead of receiving back earnest money offered by the petitioner in reply to the notice. From the pleadings of the parties and the documents placed on the record, it is crystal clear that the respondent-plaintiff knowingly that petitioner No.1 was not authorized to act on behalf of petitioner No.2 (the minor son) acted malafidely to usurp the property of the minor. The conduct of the respondent is also doubtful. He has not acted bonafidely. In these circumstances of the case, I hold that respondent No.1 is not entitled to receive double of the earnest money paid by him to the petitioner. The judgment-of the learned lower Appellate Court is set aside and it is held that the respondent- plaintiff is entitled to receive Rs.1,10,000 paid by him as earnest money to the petitioner No.1. With these observations this civil revision is accepted. No order as to costs.