' MIAN SAQIB NISAR, J.-The suit for the specific performance filed by the respondents against the appellants was dismissed by the learned trial Court vide judgment and decree dated 17-11-1979; however on appeal of the respondents the aforesaid judgment and decree was reversed and the suit was decreed on 2-4-1984.
2. Briefly stated the facts of the case are that on 9-2-1973 the respondents brought a suit for the specific performance against the predecessor-in-interest of the appellants namely Muhammad Latif, claiming that he through an agreement dated 11-6-1971, had agreed to sell 60 Kanals of the land, situated in Mouza Hamaiti Tehsil and District Bahawalpur for a total consideration of Rs,50,000 out of which Rs, 15,000 was received by him vide receipt Exh.P.2 and the possession of the land was also delivered to him but his possession was interfered by Hafiz Faiz and Allah Dowaya, regarding which the respondents got a criminal case registered against them on 23-9-1971; according to the agreement the transaction was to be finalized within a period of three months on the payment of the balance consideration to the vendor. It is the case of the plaintiffs that in this behalf, they throughout had been approaching the vendor but it is he, who has failed (o accomplish the transaction, compelling the respondents to file the suit for the specific performance, as mentioned earlier. The appellants predecessor contested the matter; he did not deny the execution of the agreement or the receipt of the consideration or the delivery of the possession but took up the plea that the plaintiffs/respondents in fact were not ready and willing to perform their part of the agreement and that the time was the essence of the agreement to sell which on account of the respondents has lapsed resultantly the following issues were framed :--
(1) Whether the plaintiffs have always been ready and willing to perform their part of the contract?
OPP.
(2) Whether the plaintiffs are estopped by their conduct to file the present suit? OPD.
(3) Whether the defendant is entitled to confiscate the earnest money? OPD (3-A) If Issue No,l is proved, whether the plaintiffs are entitled to a decree for the specific performance of the agreement of sale? If so, on what terms and conditions?
(4) Relief.
3. Parties were put to trial and the learned Civil Judge, recorded its findings on Issues Nos.l, 2 and 3 in favour of the respondents but by giving finding on Issue No,3-A against them, dismissed the suit; it is the view of the learned Civil Judge that quite a time has passed and therefore, in such situation, the respondents are not entitled to the equitable discretionary relief; against this judgment and decree" the respondents preferred an appeal, whereas the appellants also filed the cross objections on the findings upon the Issues Nos.l to 3; the learned appellate Court has maintained the finding of the trial Court on the above three issues and had dismissed the cross objections of the petitioner, while by reversing the finding on Issue No,3-A, has allowed the suit vide judgment and decree dated 2-4-1984. Hence this appeal.
4. Learned counsel for the appellants has argued that the respondents did not have any prompt and immediate action to seek the restoration of the possession, which was delivered to him by the late Muhammad Latif. By either getting a criminal case registered against Allah Dowaya, etc. Or initiating a suit for possession, which was his responsibility under the law. It is the appellants who have to take such action and ultimately when the possession was restored after their hectic effort, the respondents in order to take the advantage filed a suit for the, specific performance. It is argued that in such circumstances the discretion not to grant the specific enforcement of the agreement was properly exercised by the trial Court or as it would be a case of unfair advantage to the respondents over the appellant because of the lapse of time and the prices of the properties had increased tremendously. In support of his contention that the discretion should not be exercised the learned counsel for the appellant has cited the judgments reported as Sirbaland v.
Allah Loke and others (1996 SCM R 575), Rabnawaz and others v. Mustaqeem Khan (1999 SCM R 1362); Muhammad Yaqub v. Muhammad Nasrullah Khan and others (PLD 1986 SC 497), Syed Liaqat Ali v. Kazi Syed Muzafar Hussain and 2 others (1996 CLC 1198), Abdul Ghafoor and others v. Mst.
Anwar Jehan Begum and others (2004 M LD 894), Ferozdin v. Jan Bibi and others (2006 CLC 1815), Sarfaraz Haider and others v. Mst. Khatija Bai and 4 others (1990 CLC 1649) and Rabnawaz v.
Mustaqeem Khan (1999 SCM R.1362).
5. I have heard learned counsel for the partiers. The admitted position on the record is that the parties entered into an agreement to sell; the respondents had paid the part consideration of Rs, 15,000 and was put in possession of the property; their possession was dislodged by Allah Dowaya etc. Who had some dispute about the same land with the appellants side and therefore on account . Of the above, it is the appellants, who were not in a position to complete and finalize the deal in favour of the respondents; may be the respondents have delayed a bit in seeking the registration of the F.I.R,, but this was eventually done by him on 23-9-1971. It may not be out of place to mention here that the delay in this behalf, cannot be attributed to the respondents, because they have been perpetually trying to approach the appellants predecessor Muhammad Latif, who was the owner of the property seeking his guidance as to what should be done in the circumstances. Exh.P.3, is a letter dated 8-7-1971, which has been written by Muhammad Latif, to the appellants predecessor, who, when apprised of the dispossession expressed that on account of an accident of his son the family is very upset and that he shall soon visit Bahawalpur in this behalf, it as written that:- {{URDU TEXT}} ' This letter shows that it is Muhammad Latif, who had undertaken to get the things set right and most probably it is on account of the above, that the F.I.R. Was not got registered by the respondents immediate to their dispossession.
6. The argument that the respondents have failed to prove this letter suffice it to say that D.W.l Muhammad Rafi, the key witness of the appellants has admitted the letter; besides when the appellant appeared before the Court, he did not decline/refute the letter, but has avoided to answer about his writing and execution, on the pretext of his weak eye-sight. This document was available on the record, as a part of the respondents' evidence much before Latif's statement and if he wanted to controvert the same, it was his duty to have made a statement to that effect in his examination- in-chief. But this is conspicuously lacking.
7. It is not the case of the appellants that the respondents did not possess the requisite balance amount of consideration or were unwilling to pay the same, rather from the facts established on the record, it stands emerged that the transaction could not be finalized not due to any fault of the respondents but the circumstances that the respondents lost the possession to some third party, who had a dispute with the appellants, therefore, the concurrent finding of fact recorded by the two Courts below, upon Issue No, 1, that the plaintiffs/ respondents have been ready and willing to perform their part of the agreement does not suffer from any misreading or nonreading of the evidence.
8. As regards the question about the exercise of the discretion is concerned, it has to be exercised on the basis of sound principles, weighing the case on the basis of the rules of equity, and should not be arbitrary and whimsical exercise; the Courts while exercising the discretion, though can consider as to who shall be put to disadvantage and face the hardship but it shall be in the context of the evidence of the case and the conduct of the parties. But only on account of the lapse of some time, when even it is not shown as to how much change has come in the price of the property, it cannot be held that the enforcement of the agreement shall be disadvantageous to the defendant, therefore, the suit shall be dismissed. The judgments cited by the learned counsel for the appellants are not applicable to the facts and circumstances of the case because in the present matter, the respondents on the payment of almost l/3rd of the sale consideration and not the token money, has taken over the possession of the suit land; they were deprived of the possession because of some dispute between the appellants' side and Allah Dowaya. If during this period, the prices of the property had gone up, which even is not the case of the appellants in their written statement. Rather in para.No,3 on merits, the clear plea taken by them was that, the respondents were in collusion with the opposite group of the appellants side and in a clandestine manner gave possession to them and subsequently the plaintiffs rescinded the contract. But all this is not proved on the record by the appellants.
In the light of above, I agree with the view of the Court of appeal about the exercise of the discretion in favour of the respondents and against the appellants. It may also be mentioned here that while exercising the power of second appeal, the appellate jurisdiction of the Court is regulated by the provisions of sections 100 and 101, C.P.C. I do not find that the present case falls within the purview of the above, calling for interference. Therefore, this appeal has no merits and the same is hereby dismissed.
' Before parting, it may be observed that as about the balance amount of consideration of Rs,35,000, learned counsel for the respondents states that his client has already deposited the amount in terms of the decision of the appellate Court, but he is not hundred per cent sure in this behalf; his client is not present in the Court, thus the appellants should make the deposit of the balance amount of consideration Rs,35,000 with the trial Court within 45 days from today, their suit shall be deemed to have been dismissed.