' MAIN SAQIB NISAR, J.-The suit for the specific performance filed by the respondent against the appellant has been decreed by the learned trial Court on 28-6-1995 and the appellant's appeal has failed on 18-4-2005.
2. Briefly the facts of the case are that on 29-4-1991, the respondent brought a suit for the specific performance of an admittedly executed agreement to sell between the parties dated 6-11-1989, whereby the appellant agreed, to sell to the respondent his House bearing No.S-78-R- 21 situated at Birdwood Road Lahore, consisting of 5 Marlas. According to the terms of the agreement (Exh.P.W.5), out of the total settled consideration of Rs.6,00,000, Rs.1,00,000 was paid to the appellant by the respondent on the day of the execution of the instrument i.e.5-11-1989 and the balance was payable in the manner i.e. Rs. 1,00,000 on 17-11-1989 and Rs. 1,00,000 after 17-11-1989, whereas the remaining Rs.3,00,000 at the time of the finalization of transaction for which, the period of one ^ year from the date of the agreement was stipulated between the parties. It may be pertinent to state here that on 20-11-1989, a notice on behalf of Mr. Talib,Haider Rizvi, Advocate appeared in the daily "Nawa-i-Waqt" Lahore, according to which one Salah-ud-Din Bhatti claimed that the appellant had also agreed to sell the suit property to him and objections were thus, invited to this transaction.
3. It is stated in paragraph No. 10 of the plaint, that the respondent/plaintiff got anxious upon the said notice and was put to alert, he accordingly raised objection with Mr. Talib Haider Rizvi, Advocate which is on the record as Exh.P.6; the respondent does not claim to have further reacted upon the said notice and on 7-1-1990 states to have issued a cheque amounting to Rs. 1,50,000 to the appellant; this cheque was not encashed by -the bank because according to the respondent he stopped the payment because of the notice of Mr. Rizvi, whereas the appellant's version is that it was dishonoured due to lack of sufficient funds. Be that as it may, there was a complete silence from the respondent's side from 7-1-1990 to 14-8-1990, when a notice (Exh.P.5) to the appellant was issued by Mr. Kamran Babar Advocate on behalf of the respondent stating therein:--
3. It is stated in paragraph No.10 of the plaint, that the respondent/plaintiff got anxious upon the said notice and was put to alert, he accordingly raised objection with Mr. Talib Haider Rizvi, Advocate which is on the record as Exh.P.6; the respondent does not claim to have further reacted upon the said notice and on 7-1-1990 states to have issued a cheque amounting to Rs.1,50,000 to the appellant; this cheque was not encashed by the bank because according to the respondent he stopped the payment because of the notice of Mr. Rizvi, whereas the appellant's version is that it was dishonoured due to lack of sufficient funds. Be that, as it may, there was a complete silence from the respondent's side from 7-1-1990 to 15-8-1990, when a notice (Exh.P.5) to the appellant was issued by Mr. Kamran Babar Advocate on behalf of the respondent stating therein:-- "2. That vide agreement dated 6-11-1989, you agreed to sell the property for Rs.6,00,000 (six lacs) to my client and you received Rs.1,00,000 (one lac) as earnest money on the same date i.e. 6-11-1990.
Later on, you also received Rs.22,000 on 8-1-1990 as part of the rest of the sale price.
3. That you also agreed that you would make arrangement to get the said property free from all encumbrances and liabilities within one year from the date of agreement i.e. 6-11-1989 to 6-11-1990.
4. That my client Mr. Masood Akhtar was, has been and is still ready and willing to perform his part of the contract at any time and place."
' In this notice, no reference or even the effect of the notice of Salah-ud-Din Bhatti causing any impediment in the way of the respondent/plaintiff for the performance of his obligation towards the payment of the balance amount as stipulated in the agreement has been mentioned. It was only sought that necessary arrangements should be made for the fulfilment of the agreement within the stipulated period failing which, the indication given was that the respondent shall be constrained to approach the Court of law. No further prompt action was taken by the respondent after the aforesaid legal notice, but on 5-1-1991, he got issued a notice (Exh.P.1) to Salah-ud-Din Bhatti through Mr. Ashtar Abbas Advocate, seeking the information if the agreement to sell between the appellant and Salah-ud-Din Bhatti still subsists. As per the respondent, Salah-ud-Din Bhatti responded to this notice on 19-1-1991 intimating him that his agreement to sell is no more in force, thus, the suit was filed on 29-4-1991, specifically stating in paragraph No.15 of the plaint that the plaintiff has been and is still ready and willing to perform his part of the agreement.
4. The appellant resisted the suit primarily taking up the plea that the respondent has failed to fulfil his part of the agreement and was not ready and willing to perform the same. On account of the pleadings of the parties, the following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has no cause of action? OPD.
(2) What is the effect of preliminary objection No.7 of the written statement? OPD.
(3) Whether the defendant agreed to sell the Property bearing No.S-78- R-21 for a consideration of RS.6,00,000? OPP.
(4) Whether the plaintiff paid the amount of Rs.1,22,000 as earnest money to the defendant? OPP.
(5) Whether the plaintiff is entitled to the decree for specific performance on the payment of balance amount i.e. Rs.4,78,000? OPP.
(6) Relief.
5. The respondent/plaintiff examined Mr. Ashtar Abbas, Advocate as P.W.1, who inter alia tendered in evidence his notice dated 5-1-1991 as Exh.P.1 and the reply of Mr. Bhatti dated 19-1-1991 as Exh. P .4; Tariq Mehmood (marginal witness) as P.W.2, Kamran Babar, Advocate as P.W.3, he produced his notice dated 15-8-1990 as Exh.P.5, and the respondent appeared as P.W.4 and produced a copy of a letter dated 25-11-1989 written to Mr. Talib Haider Rizvi, Advocate in response to the public notice published in the newspaper. On the other hand, the appellant/defendant examined Atiq-ur- Rehrnan as D.W.1 and Abid Rauf as D.W.2. Upon the conclusion of the trial, the learned Civil Judge by giving his findings upon Issues Nos.3, 4 and 5 in favour of the plaintiff/respondent and on Issues Nos.1 and 2 against the appellant, decreed the suit. It may be pertinent to mention that according to the learned Civil Judge, the plaintiff/respondent was able to prove that he was ready and willing to perform his part of the agreement as the Court held "It is also on the record that plaintiff had made payment through cheque to the defendant however, same was stopped by him as he bears some apprehension when he read an advertisement regarding suit premises." Further it was mentioned that "record shows that he was already ready and willing to act upon on the part of contract but it was defendant who betrayed him." The pleadings of the parties or the evidence particularly the statement of the plaintiff was neither considered nor is reflected by the judgment.
To have been appreciated. Anyhow, while giving his findings on Issue No.5, a reference has been made by the learned Civil Judge to the statement of the plaintiff who appeared as P.W.4 and it is mentioned "he stopped the payment of his cheque and sent a notice to the defendant which is Exh.P.1, and when he learnt through document Exh.P.6, that agreement of the defendant and Salah- udDin has come to an end he forced the plaintiff to act upon the terms and conditions of the impugned agreement Exh.P.W.5." In paragraph No.7 of the judgment of the trial Court, it is stated "Perusal of the record shows that plaintiff has deposited the entire balance of the consideration in the Court as and when he was directed by the Court to do so and now the apparent bona fide of the plaintiff is on the record that he had the money and he has money to pay the same to the defendant". . While concluding his finding's on Issue No.5, the trial Court held "The objection of defendant that plaintiff was lack of money has no force and similarly he is unable to prove that in fact agreement was in respect of some other property and his faith has been hampered by the defendant. The stoppage of payment by the plaintiff when he learnt about the agreement of the suit premises of the defendant with Salah-ud-Din is a natural phenomena and of course he had the right to look into the matter and the record shows that it was defendant who betrayed the plaintiff and he entered into agreement to sell of the suit premises with one Salah-ud-Din and he concealed these facts from the plaintiff and this, incident itself shows that in fact plaintiff has come to the Court with clean hands but the intention of defendant remained mala fide throughout."
6. The appellant, as mentioned above, challenged the judgment of the learned trial Court in appeal and the learned appellate Court without referring to or discussing any 'evidence, after giving the facts of thecase and enumerating as to what evidence has been produced by the parties and mentioning that the appellant has not appeared in the witness-box as his evidence was closed, came to the conclusion -It is not out of place to mention that as per statement Masood Akhtar, plaintiff/P.W.4 has deposited even the balance amount on the order of the Court in the Court, hence it is concluded that the plaintiff is entitled to decree for specific performance of the contract, as the defendant agreed to sell the suit-land for a consideration of Rs.6 lacs to the plaintiff, he received Rs.1 lac from the plaintiff, so the defendant has been unable to prove his version that plaintiff himself violated the terms and conditions of the agreement to sell".
7. Before proceeding further with the matter, it may be pertinent to mention here, that as the question of the stop payment or dishonour of the cheque amounting to Rs.1,50,000 admittedly issued in favour of the appellant by the respondent was causing some ambiguity in resolving the proposition about the ready and willingness of the respondent to perform his part of the agreement, therefore, this' Court under the provisions of Order XLI, rule 27, C.P.C., felt the necessity of additional evidence and in this regard, examined Muhanimad Arshad, Officer Grade-II, Muslim Commercial Bank Ltd. KSB Building, Sir Agha Khan Road/Davis Road, Lahore, as C.W.1; the original cheque (Exh.C.W.1/2) and the dishonour slip (Exh.C.W.1/3) were also received in evidence through his statement.
8. Learned counsel for the appellant has argued that both the Courts below have not properly read the pleadings of the parties and even the evidence on the record; it was the duty of the respondent to have proved that he was ready and willing to perform his part of the agreement, but it is established from his own conduct that he did not fulfil his own obligation under the agreement, thus, in equity he was not entitled to the giant of the discretionary relief for the specific enforcement. It is further submitted that the respondent did not make the payment of the consideration amount as has been stipulated between the parties in the agreement and the cheque issued by him, which otherwise, was not in consonance with the agreement, was' dishonoured for the lack of funds, therefore, such conduct has serious reflection upon the respondent for seeking the equitable relief. It is also submitted that the case of the respondent, when considered in the light of the agreement to sell, the plaint and his own statement, contradicts his own stance that he was ready and willing to perform his part of the agreement and had adhered to the terms and conditions of the said agreement. To support his arguments about the rule for the grant and refusal of the equitable relief in the specific, performance matter, particularly when the plaintiff is not ready to perform his part of the agreement and his conduct is not aboveboard, learned counsel for the appellant has cited the following judgments : ' Khurshid Ali and others v. Abdur Rauf and others (PLD 1990 Lahore 211); ' Muhammad dress Jag v. Mst. Unezah Shahid and another (2004 MLD 1033); ' Mst. Shaheen Kausar v. Shakeel ' Ahmad (2005 YLR 1347); ' Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189); ' Muhammad Sharif v. Mst. Fajji alias Phaji Begum through L:Rs. And another (1998 SCMR 2485) and; ' Fazal-ur-Rehrnan v. Ahmed Saeed Mughal and others (2004 SCMR 436).
9. Contrarily, the learned counsel for the respondent has argued that the respondent was always ready and willing to perform his part of the agreement; he paid the earnest money of Rs.1,00,000 at the time of execution of the agreement, but stopped the payment of the second installment for the reason that by the time, the notice had been got issued by Salah-udDin Bhatti through Talib Haider Rizvi; that the appellant had tried to cheat the . Respondent and attempted to sell the property for which he already had made an agreement with Mr. Bhatti; in such a situation, the respondent was.
Justified to stop the payment of the cheque to require the appellant to clear the property from the agreement with Mr. Bhatti.
10. Heard. Undoubtedly, the relief of the specific performance is an equitable relief and the conduct of the parties, particularly the one who claims such equitable relief, is most relevant and expedient.
It is also the settled law that the person who asserts a factual plea has to primarily prove the same.
According to paragraph No.15 of the plaint, the respondent in very clear and unequivocal terms stated that he was and is still ready to perform his part of the agreement. From the contents of the other paragraphs of the plaint, this plea seems to be the foundation of the respondent's case.
Therefore, I shall endeavour to examine, whether the respondent has been able to .Meet the criteria of his readiness and willingness. Starting this exercise, I shall refer to the agreement to sell (Exh.P.W.5) dated 6-11-1989. The total consideration, which C is to be paid by the respondent to the appellant as a price of the property is Rs.6,00,000; on the date of the execution . Of the instrument, Rs.1,00,000 was paid and there is no dispute between the parties in this behalf; out of the balance amount of Rs.5,00,000, Rs.1,00,000 was to be paid by the respondent till 17-11-1989; further amount of Rs.1,00,000 after 17-1'1-1989 and the remaining consideration, Of Rs.3,00,000 within one year from the date of the execution of the agreement to sell i.e. By or before 5-11-1990. The plaintiff/respondent has tried to built up a case that the first instalment of Rs.1,00,000 was not paid by him because there was a notice got issued by 'Salah-ud-Din Bhatti in daily "Nawa-i-Waqt" Lahore. The collective reading of paragraphs Nos.9, 10 and 11 is that on the publication of this notice dated 20-11-1989, the respondent got anxious and, therefore, raised the objection with Mr. Talib Haider Rizvi. However, it is not the respondent' case that any contact in this behalf was also made with the appellant to confront him if any agreement to sell was executed by him in favour of Salah-ud-Din Bhatti, which still exists or not. Be that as it may, in his statement while appearing as P.W.4, the plaintiff/respondent has categorically stated that he had to make the payment of the second instalment after 7/8 days of the agreement, but during this period, he came to know that the appellant had entered into an agreement with someone else. This statement is contradictory and false, because according to the plaint, the respondent attained the knowledge of the alleged agreement between the appellant and Salah-ud-Din Bhatti on the publication of the notice on 20- 11-1989, whereas the amount of the second instalment had become due on 17-11-1989 and it is not the case of the respondent that this second instalment was either tendered or paid to the appellant within the due time.
11. There is nothing on the record to show that the respondent after the notice dated 20-11-1989, ever got in touch with the appellant and confronted him with the said notice, rather his case is that the objections were filed with Mr. Talib Haider Rizvi; he has placed on record a copy of the objections as Exh.P.6, but without summoning the original from Mr. Rizvi and therefore, the secondary evidence was inadmissible under the law. It is also not shown if Mr. Rizvi responded to such objections and what was the plea raised and whether he issued any reminder to Mr. Rizvi.
12. Anyhow, there remains a complete silence from the respondent towards the appellant, when notice dated 15-8-1990 (Exh.P.5) was sent to the appellant by Mr. Kamran Babar, Advocate, counsel for the respondent and in this notice as well, there is no reference made that it is on account of the notice of Salah-ud-Din Bhatti that the two balance instalments were withheld. This conspicuous omission belies and controverts the stance of the respondent not only made in the plaint that he was prevented to make the payment of the balance amount, because of this notice, rather his statement while appearing as P.W.4. Again it is very strange that before serving the notice (Exh.P.5) upon the appellant, the respondent did not seek the clarification from Salah-ud-Din Bhatti, about his agreement to sell, but it is on 5-1-1991, much after the expiry of the terminus date settled between the parties that he got issued the notice (Exh.P.1) to Salah-ud-Din Bhatti through his counsel Mr. Ashtar Abbas, which notice was replied vide letter dated 19-1-1991 (Exh.P.4) and thereafter the suit was filed. I fail to understand as to why in the notice dated 15-8-1990 no reference has been made to the agreement of Salah-ud-Din serving as an impediment in the way of the respondent to make the payments as per the agreement, why the necessity of issuing a notice to Salah-ud-Din Bhatti on 5-1-1991 arose. In my considered view, this was all done by the respondent with an object to cover his failure to make the payment of the due amount to the appellant within the stipulated period of time.
13. Though it is not mentioned in the plaint that towards the balance consideration, any cheque was issued by the respondent in favour of the appellant, what was the date and the amount of the cheque etc. But in his examination-in-chief, the respondent has categorically deposed that the settled price of the property was Rs.6,00,000; Rs.1,00,000 was paid as earnest money and it was stipulated that the payment shall be made in instalments, but during this period, it transpired that the appellant had already entered into an agreement to sell with Salah-ud-Din Bhati, which was prior to his agreement, therefore, the 'Next Day' the payment was stopped with the bank and the first notice was served upon the appellant, which is Exh.P.5. The respondent has not produced on the record any counterfoil of the cheque which was issued and the amount covered by it, but in the cross-examination, he mentioned the date as 7-1-1990 and the amount as Rs.1,50,000; it is not explained as to why the cheque of Rs.1,50,000 was issued when according to the respondent's statement in the cross-examination, the amount of Rs.3,00,000 had to be paid within three months of the agreement to sell, and this amount does not cover the balance of the instalment and when he allegedly had learnt about the agreement of Mr. Bhatti. In the cross-examination, the respondent has denied that his account number was "514181" and claimed it to be "32586/4" from which this cheque was issued, but has not produced on the record any statement of account pertaining to that to establish that the account pertains to him and that sufficient amount of Rs.1,50,000 was available in his account on that date, or any document to establish that the payment was stopped by the respondent. As mentioned above, in order to ascertain, if the account number of the respondent was "514181" and the cheque of Rs.1,50,000 was issued by him and whether the payment was stopped or the cheque was dishonoured, this Court upon C.M. No.892-C of 2006, decided to record the additional evidence and recorded the statement of Muhammad Arshad, Officer Grade-II, Muslim Commercial Bank Ltd. KSB Building, Sir Agah Khan Road/Davis Road, Lahore (C.W.1); he categorically stated that the statement of accounts of PLS Account No.325-0 in the Muslim Commercial Bank, Davis Road Branch, Lahore, which was previously Avari Hotel Branch Lahore, has been brought by him; he also brought the original ledger book, which was compared with the attested statement of account and has tendered in evidence as Exh.C.W.1/1; the original cheque bearing No.514181 dated 7-1-1990 from the said account for an amount of Rs.1,50,000 as Exh.C.W.1/2 and the dishonour slip as Exh.C.W.1/3. In the cross-examination, it is not controverted by the respondent if the above was not his account number maintained by him at Muslim Commercial. Bank, Avari Hotel Branch Lahore, rather the suggestion made was "It is incorrect to suggest, the cheque Exh.C.W.1/2 was never issued. It is further incorrect to suggest that it was never presented to the MCB, Avari Hotel Branch Lahore and was not dishonoured through the slip Exh.C.W.1/3". The respondent was given the opportunity to produce the evidence in rebuttal of the above, but he did not choose to do so; he never even produced the statement of account from whatever account he stated that the cheque dated 7-1-1990 was issued in favour of the appellant, which obviously was for the amount of Rs.1,50,000 to show that he had sufficient amount in the said account and the payment was stopped; he himself also did not appear after the statement of C.W.1. The. Presumption of withholding the G best evidence thus can surely be - drawn against the respondent within the contemplation of Article 129(g) of the Qanun-e-Shahadat Order, 1984.
14. Putting all these facts and the evidence together, which have not been considered by the two Courts below, it is quite vivid that the respondent, who was supposed to pay the amount of the consideration within the contemplation of the agreement to sell, failed to make the payment; the cheque which was issued by him, is even after- the date of the stipulated time, yet it was dishonoured for the lack of the sufficient funds. The two Courts below have only gone 'by the reasoning that the respondent has deposited the amount in the Court as was directed by the Court after the institution of the suit, which proves his bona fide and readiness and willingness to perform his part of the agreement, but have totally ignored his past as analyzed above. In my considered view, it is the respondent who failed to abide by the terms and conditions of the agreement and, therefore, he is not entitled to the grant of equitable relief of the specific enforcement. Thus, no sanctity can be attached to the so-called concurrent finding of facts recorded by the two Courts below, which as mentioned above, have not been able to properly consider the pleadings of the parties in the sequence of the facts and also the evidence on the record. The Courts below have failed to even view that the statement of the respondent, as has been highlighted above, is in contradiction of the contents of the plaint and also the agreement to sell. Resultantly, the judgments and decrees of the Courts below are declared contrary to the law and thus, are liable to be set aside under the provisions of section 102 of C.P.C.
' In the tight of above, the impugned judgments and decrees are set aside and the suit of the respondent is dismissed with I costs throughout. The appeal is accordingly allowed.