SYED SAKHI HUSSAIN BOKHARI, J.--- Sheikh Riaz Ahmad has filed this appeal against the judgment and decree, dated 10-9-1995 passed by learned Civil Judge, Lahore whereby suit for specific performance of contract brought by him was dismissed.
2. Relevant facts for the disposal of this appeal are that the appellant filed suit for specific performance of contract against the respondent (Mst. Akhtar Sultana) and stated that on 16-11- 1990 the respondent/defendant agreed to sell suit property (Bungalow No,145, Main Ferozepur Road, Lahore) in his favour for a consideration of Rs,3,70,00,000) and received Rs,1,00,000 in advance. The parties agreed that sale-deed shall be executed later on. He asked the defendant/ respondent to receive balance amount and execute registered sale-deed in his favour. but she refused to perform her part of the contract, therefore, he was constrained to file suit. The respondent/defendant mentioned in written statement that the plaintiff is not entitled to the equitable relief of specific performance of contract, because he has tampered with the agreement by making interpolation therein dishonestly and fraudulently. She further mentioned that plaintiff has been unwilling and unable to perform his part of the contract, hence he is not entitled to decree prayed for the suit and that he was unable to arrange for the sale price despite direction of the Court made vide order, dated 30-3-1991. The defendant stated that plaintiff had made interpolations in the agreement to sell by adding last line which is unauthorized and constitutes forgery. She never refused to perform her part of the contract. The plaintiff has never been ready and willing to perform his part of the contract by paying the balance price of Rs,3 crores and 69 lacs. On the pleadings of the parties following issues were framed:-- "(1) Whether the plaintiff failed to perform his part of the contract. If so, its effect? OPD
(2) Whether the plaintiff is ready and willing to perform his part of the contract? OPP
(3) Whether the plaintiff has made forgery in the agreement to sell dated 16-11-1990, if so, when how and with what effect? OPD
(4) Whether the plaintiff is entitled to get decree for possession of the suit property through specific performance of agreement to sell, if so, on what terms? OPP
(5) Relief.
The parties adduced evidence in support of their respective claims and after hearing the parties, learned trial Court decided all the issues against the appellant and dismissed the suit brought by him. Hence this appeal.
3. We have heard the arguments and perused the record.
4. As mentioned above plaintiff/appellant had filed suit for specific performance of contract against the respondent on the basis of agreement/receipt dated 16-11-1990 (Exh.P.1). The case of the appellant is that respondent agreed to sell suit property in his favour for a consideration of Rs,3,70,00,000 and received Rs:1,00,000 in advance on 16-11-1979. However, the case of respondent is that she had agreed to sell the suit property in favour of appellant and she was ready to perform her part of contract but plaintiff/appellant was not in a position to pay balance amount (Rs,3,69,00,000), therefore, he was not interested to get transferred suit property in his favour. Also that plaintiff made interpolations in the receipt/agreement dated 16-11-1990. Her case is that last line {{URDU TEXT}} has been added in Exh.P.1 through forgery. The plaintiff examined Malik Nazir Ahmad as P.W.1. He stated that defendant agreed to sell suit property in favour of plaintiff for a consideration of Rs,3,70,00,000. She agreed to deliver possession after vacation of shops. The witness stated that he did not know if receipt (Exh.P.1) has been changed. During cross-examination he stated that he did not know if servant of defendant had obtained photocopy of Exh.P.1 for the defendant. The plaintiff did not give Rs,3,69,00,000 to defendant for getting the sale-deed registered in his favour. P.W.2 Sheikh Muhammad Sarwar also made similar statement. The plaintiff appeared as P.W.3 in support of his case. During cross-examination he denied that in Exh.P.1 he added the last line with mala fide, without permission and knowledge of defendant. He never offered cash to defendant because she had not delivered her vacant possession of the suit property. The defendant examined D.W. 1, Umer Farooq D.W.2, Muhammad Manzoor and she herself appeared as D.W.3 in support of her case.
5. As stated above the case of plaintiff is that defendant/respondent agreed to sell suit property in his favour for a consideration of Rs,3,70,00,000 vide receipt/agreement dated 16-11-1990. The respondent too admits that she had agreed to sell the suit property in favour of appellant.
However, the case of respondent is that plaintiff has added last line in the Exh.P.1 with mala tide and through forgery. The impugned judgment shows that learned trial Court observed that last line in Exh.P.1 was added later on. It is in evidence that plaintiff never tendered balance sale price (Rs,3,69,00,000) to defendant/respondent for getting the sale-deed registered in his favour. The interim order, dated 30-3-1990 passed by learned trial Court shows that learned trial Court granted stay order subject to deposit of Rs,3,69,00,000 within seven days but appellant failed to deposit the same and in order, dated 27-7-1991 learned trial Court observed that:-- "The interim injunction was granted subject to the condition that plaintiff would deposit Rs,3,69,00,000 within seven days but he has not deposited this amount, therefore, ad interim injunction granted on 30-3-1991 will not operate against the petitioner/ defendant.
As mentioned above, learned trial Court observed that plaintiff had made interpolations in the agreement. So he has not approached the Court with clean hands. Learned trial Court decided Issue No,3 after appraisal of entire material available on record. Paras. Nos,13 and 14 of the judgment dated 10-9-1995 read as under:- "(13) A detail survey of the said evidence would, show that one thing stands admitted that document Exh.D. 1 is the true copy of the Exh.P. I . It was prepared at the time of writing of the document. Although the plaintiff denies the addition of the disputed line and he is corroborated by two P.Ws., but man can tell a lie but circumstances could not, in that, in addition to the evidence, the documents by itself speak something:--
(1) Condition No,2 of the receipt reveals that it was executed with the consent of the parties. Then conies the disputed line. Virtually the said condition that it was entered into with mutual consent usually comes as a last condition.
(ii) The disputed line which has been made a part of the condition No,2 has no relevancy with it.
(iii) The disputed line is with a different ink and at a different time and it can even be seen with a naked eye.
(iv) It is with a different pen.
(v) If it is seen one could adjudge that the space covered by any of the three lines is more than the space covered by the condition No,2 and the word "Alaba".
(14) In view of the above, I am of the considered 'view that the disputed line was got added latter on by the plaintiff. This conduct of the plaintiff disentitles him from any relief. The issue is decided in favour of the defendant and against the plaintiff."
It is pertinent to note that Exh.P.1 shows that parties agreed to execute regular agreement later on but the same was never executed. As stated above plaintiff has not approached the Court with clean hands. The interpolation appears to have been made with mala fide as according to learned counsel for the respondent the shops are in possession of tenants and it was not possible for the respondent to eject them in short period. So appellant intended to linger on the matter on this pretext because he had no money to pay to the respondent as sale price. Since the relief of specific performance is essentially equitable in character and no indulgence can as such be shown to a person who has acted unfairly, the prayed for relief cannot be allowed to the appellant in the circumstances of the present case. Reliance can be placed on the case of Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCM R 1362. Even otherwise appellant has failed to produce any worthwhile evidence in support of his case. The statements of D.Ws . are convincing and confidence-inspiring. As such we find that learned trial Court has rightly decided the issues in favour of respondent and dismissed the suit brought by appellant. So the findings recorded by learned trial Court on all the issues are affirmed. There is no illegality or infirmity in the impugned judgment so as to warrant interference by this Court.
15. For what has been discussed above we are of the considered opinion that this appeal has no force and the same is accordingly dismissed. No order as to costs.