' JAWWAD S. KHAWAJA, J.---Muhammad Younus appellant/plaintiff impugns the concurrent decrees of the learned trial Court dated 21-11-1987 and of the learned appellate Court dated 12-5- 1991 whereby specific performance of agreement (Exh.P.1) dated 22-2-1971 has been refused.
Instead of enforcing the agreement (Exh.P.1) specifically the learned trial Court had decreed the suit of the appellant/plaintiff for a sum of Rs.22,337.61. The decree of the learned trial Court has been affirmed by the appellate Court with the slight modification that the amount recoverable by the appellant has been reduced to Rs.21,637.61 from Rs.22,337.61.
2. This unfortunate litigation started more than three decades ago, on 1-2-1974 when the appellant/plaintiff filed his suit seeking specific performance. Although the record of the case in voluminous and the litigation itself has been long drawn out, the facts necessary for its disposal are relatively straightforward.
3. The dispute between the parties relates to agricultural land measuring 120 Kanals, situated in Chak No.50/DB, Tehsil Noorpur, District Khushab. The land belonged to the Punjab Province and was allotted to Mst. Fazlan (processor-ininterest of respondents Nos.1 and 2) some time in the 1950's. According to the appellant/plaintiff, Mst. Fazlan vide said agreement (Exh.P.1) agreed to sell the disputed land to the appellant for a total consideration of Rs.19,000. The agreement noted that proprietary rights had not till then been transferred to Mst. Fazlan. It was, therefore, agreed that the land would be conveyed to the appellant after the grant of such rights of Mst. Fazlan. On the same date i.e. 22-2-1971 the father of the appellant paid a sum of Rs.11,612 to Mst. Fazlan against a receipt (Exh.P.2).
' Thereafter the balance consideration was also paid vide two receipts dated 10-6-1971 and 2-7- 1972 for Rs.4,000 and Rs.3,300 respectively. The outstanding amount of Rs.88 was paid without obtaining a receipt. Although Mst. Fazlan denied execution of the agreement (Exh.P.1) and the receipt (Exh.P.2), both Courts below have concurrently held that execution of both documents had been duly proved.
4. In addition to Exh.P.1 and Exh.P.2 Mst. Fazlan also executed a general power of attorney (Exh.P.3) in favour of Ali Muhammad father of the appellant. This is a registered instrument. The power of attorney, inter alia, made reference to the agreement (Exh.P.1) and specifically stipulated that the attorney would obtain proprietary rights and would thereafter have the authority to convey the property to his son (the appellant herein).
5. The witnesses produced by the appellant/plaintiff proved the three documents viz. Agreement (Exh.P.1), receipt (Exh.P.2) and power of attorney (Exh.P.3). It is important to note that the son of Mst.
Fazlan namely, Muhammad Akram (respondent No.1) was an attesting witness of the aforesaid documents. He, however, chose not to appear in the witness-box. The learned Courts below, therefore, were fully justified, on the basis of the available evidence, to hold that execution of these documents by Mst. Fazlan had been duly proved. Even before me no challenge was made against this finding.
6. The learned appellate Court has not dealt with the aforesaid matter because it has decided the case against the appellant on the ground of limitation. Here I need to 'set out the basis of the appellate judgment before adverting to the arguments advanced against it by learned counsel for the appellant. Civil Appeal No.224/89 was preferred by the appellant before the Court of first appeal to impugn the decree of the learned trial Court. It was the appellant's case that having proved execution of the above noted documents he was entitled to specific performance of the agreement (Exh.P.1). This appeal was held by the learned appellate Court to be time-barred, because the appellant had failed to file the certified copy of the impugned decree with his memorandum of appeal.
7. On 1-4-2005 learned counsel for the appellant had argued before me that the appellant had, in fact, applied for certified copies within time but the said copies had been wrongly obtained by Muhammad Arshad Clerk of the learned Advocate Representing Muhammad Akram (respondent No.1). He had also contended that it is only for this reason that certified copies were not filed with the appeal and that these circumstances were brought to the attention of the learned appellate Court but no inquiry was undertaken by it to determine if indeed the contentions of the appellant were correct.
8. Considering the above submissions and in order to ensure that prejudice is not caused to the appellant, I had myself directed the learned District Judge, Khushab, to undertake an inquiry and submit a report. The learned District Judge has submitted a report in which he has noted that the original application form for certified copy bearing No.6948 had been destroyed as part of the old record. However, on the basis of the statements of A the witnesses including the staff of the copying agency he has come to the conclusion 1M the allegation of the appellant that the copy applied for by him had been taken by the Clerk of the respondent's counsel, had not been established. In this view of the matter, I do not find any justification for interfering in the conclusion reached by the learned appellate Court that Civil Appeal No.224 of 1989 filed by the appellant/ plaintiff was time-barred.
9. The matter, however, does not end here. The L.Rs. Of Mst. Fazlan (respondents Nos.1 and 2) had filed Civil Appeal No.213 of 1989. Another Appeal bearing No.217 of 1989 had also been filed by one Zafar Ali (respondent No.3) who had purportedly purchased the suit property from Mst. Fazlan during the pendency of the appellant's suit and had been impleaded as a defendant on the application of the appellant. In both of these appeals the appellant had filed cross-objections to assail the findings of the learned trial Court on Issues Nos.9 and 13, whereby specific performance of the agreement (Exh.P.1) has been refused. These cross-objections have also been dismissed by the learned appellate Court on the ground that the same were time-barred.
10. Learned counsel for the appellant has challenged the dismissal of his cross-objections. I have examined the record of the learned appellate Court and find that in one of the appeals the appellant had filed his cross-objections on 12-3-1988 while in the other he had filed his cross- objections on 19-3-1988. Both cross-objections were well within time because the order sheet shows that notice was issued to the appellant on 24-2-1988. Even the learned appellate Court has noted that in the appeal filed by the L.Rs. Of Mst. Fazlan, the appellant was served for 19-3-1988. The order dated 24-2-1988 shows that the appellant/plaintiff had not been served till then and, therefore, fresh notice had been ordered for service of the appellant for 19-3-1988. It appears that the learned appellate Court proceeded on the erroneous premise that the appellant was required to file his cross-objections within one month of the filing of the appeal preferred by the respondents rather than one month from the date on which he was served. Order XLI, rule 22, C.P.C.
Allows a respondent to file cross-objections within one month from the date on which he was served. In the circumstances, the finding of the learned appellate Court that the cross-objections filed by the appellant were time-barred, is clearly contrary to law. It is, therefore, not sustainable and is consequently, set aside.
11. Having dealt with the issue of limitation, I now consider the merits of the case. Learned counsel for the appellant argued that once the appellant had succeeded in proving the agreement and payment of consideration, he, ex debito justitiae became entitled to specific performance of the agreement (Exh.P.1) because all government dues had been paid to the government by the father of the appellant as proved through the payment challan (Exh.P.10) and there were no equities or legal impediments to justify refusal of the specific relief sought by the appellant. At this point it would be useful to reproduce Issues Nos.8, 9 and 1 in order to examine the reasoning of the learned trial Court and to appreciate the appellant's cross-objections whereby the findings of the learned trial Court on Issues Nos.9 and 13 were assailed. These issues were framed as under:--
(8) Whether the defendant No.1 executed agreement of sale in favour of the plaintiff on 22-2-1971 and received Rs.11,612 as earnest money? OPP
(9) If Issue No.8 is proved whether the agreement is illegal, void, ineffective? OPD-1
(13) Whether the plaintiff is entitled to specific performance of agreement of sale? If so, on what terms?
12. The learned trial Court has held that the agreement (Exh.P.1) was violative of the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. This finding, I am afraid, is against the law. It is now well settled that a mere agreement, which is executory in nature, does not violate section 19 aforesaid. In the present case, as noted above, the agreement (Exh.P.1) and the power of attorney (Exh.P.3) expressly noted that proprietary rights in the disputed land had not till then been conferred on Mst. Fazlan. It is for this reason that the agreement and the power of attorney recognized that a conveyance would only be effected after grant of proprietary rights by the government. I am clear that only if a conveyance had been intended in praesenti, by the agreement (Exh.P.1) it would have been against the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. Since no such conveyance was made through Exh.P.1, the finding of the learned trial Court is a result of a clear misinterpretation of section 19 aforesaid. The said finding is not legally sustainable and is, therefore, reversed.
13. Learned counsel for the L.Rs. Of Mst. Fazlan (respondents Nos. 1 and 2) argued that relief by way of specific performance was discre tionary and it was not incumbent upon the learned Courts below to grant such relief even where it.
14. Was lawful to do so. As a general proposition of law there can be no cavil with this submission because section 22 of the Specific Relief Act itself so provides. This contention, however, does not advance the case of the appellant because there is no discussion at all in the impugned judgments which would show that the learned Courts below had consciously exercised a discretion not to grant specific performance of the agreement (Exh.P.1). On the contrary, the learned appellate Court did not even adjudicate the merits of the appellant's case because his cross- objections were dismissed on the ground of limitation. The learned trial Court also did not deliberate on its discretion to refuse specific performance. Such relief was declined only on the ground that the agreement was violative of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. . Learned counsel for the respondents Nos.1 and 2 next contended that in view of the provisions of section 23 of the Contract Act, the learned Courts below should have held that the object of the agreement (Exh.P.1) was unlawful because it would defeat the provisions of sections 19 of the Colonization of Government of Lands (Punjab) Act, 1912. This argument is wholly misconceived in view of the law which is well-settled that an agreement in the nature of Exh.P.1 is merely executory in nature and does not amount to a conveyance. It, therefore, does not violate section 19 of the Colonization of Government of Lands (Punjab) Act, 1912. having her executed the agreement (Exh.P.1), the receipt (Exh.P.2) and the power of attorney (Exh.P.3). This argument, I am afraid, is wholly without merit. It is not the respondents' case that Mst. Fazlan had been taking advantage of or that there was any undue benefit obtained by the appellant. On the contrary, the respondents/defendants had denied outright the execution of the aforesaid documents. The respondents cannot be allowed to advance a new plea at this stage, particularly, when such plea is contrary to the stance of the respondents/defendants.
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15. Furthermore, Muhammad Akram (respondent No.1) son of Mst. Fazlan witnesses the above referred documents. It is obvious that he was actively engaged in the transaction and Mst. Fazlan was not involved in it alone.
16. Finally, learned counsel for the respondents Nos.1 and 2 argued that the appellant/plaintiff had himself prayed in the alternate for the return of the amount paid by him and this alternate prayer had been granted by the learned Courts below. It was contended that in these circumstances the refusal of the Courts below to grant specific performance should not be interfered with. This contention is also not legally tenable, firstly, because the appellant had expressly prayed for specific performance of agreement and was entitled to such relief having proved the agreement and payment of consideration. Secondly, it is settled law that an alternate prayer for monetary compensation is not, by itself, good reason Ifor refusing specific performance of a contract.
17. Learned counsel for the respondents Nos.1 and 2 further argued that Mst. Fazlan was a lady and the appellant/ plaintiff had taken advantage of this fact by In view of the foregoing discussion, the findings of the learned Court on Issues Nos.9 and 13 are reversed and the appellant is held entitled to a decree for specific performance of the agreement (Exh. P . 1) .
18. I now take up the case of Zafar Ali (respondent No.3). His learned counsel argued that the said respondent had acquired title from Mst. Fazlan prior to the filing of the suit. This contention, however, is misconceived because the suit of the appellant was filed on 1-2-1974 while the alleged title of Zafar Ali came into existence on 15-4-1975. Zafar Ali, as such, can assert no case better than that of the respondents Nos.1 and 2.
19. In view of the above discussion, the appellant is held to be entitled to specific performance of the agreement (Exh.P.1). His suit accordingly, is decreed as prayed for.
20. The appellant shall also be entitled to his, costs throughout.