' MUHAMMAD MUZAMMAL KHAN, J.--- Instant civil revision assailed the appellate judgment decree dated 26-10-1998 passed by the learned Additional District Judge, Lahore, whereby respondent's appeal was partly accepted and petitioner's prayer to the extent of specific performance of the agreement was declined, awarding him an alternative decree for recovery of an amount of Rs,64,054.4.
2. Succinctly, relevant facts are that petitioner filed a suit for declaration to the effect that respondents/defendants agreed to sell Ashes/Shops Refuse from the various workshops of the Pakistan Railways to the tune of Rs,2,00,000 C.Ft. Against an amount of Rs,80,000 which was deposited, as per terms of the contract. The Ashes/Shops Refuse was to be lifted as per conditions contained in letter 'No,580-W/13(PT-2) dated 27-5-1991 and the petitioner was to lift the contracted material within the specified time, as per measurement of the loaded wagons to be undertaken jointly by the Assistant Works Manager and the petitioner. It was also a condition of the contract that any material like pieces of iron, mettle and nuts/bolts, found at the time of unloading of the wagons, shall be property of the Railways Department. It was pleaded by the petitioner that respondents only allowed lifted of Rs,30,000 C.Ft. Of Ashes where after the lifting was forcibly stopped, out of ulterior motives, though the respondents had no such legal right. Petitioner claimed to have represented to the Railways Ministry whereupon an investigation into the matter was ordered but without any fruitful result. Petitioner issued to the respondents a legal notice and in response to it, respondent issued two Cross-cheques Nos.368622 and 368623 dated 8-5-1994 for the amount of Rs,10,000 and Rs,54,054.40, respectively being the refund of cost of the unlifted Ashes by the petitioner. Letter conveying cancellation of contract was challenged by the petitioner and he claimed that the respondents were legally bound to release the remaining contracted quantity through specific performance of the contract.
3. Respondents being defendants in the suit, contested the same by filing their written statement wherein they asserted that the petitioner had earlier filed a similar suit, which was dismissed and the second suit was barred by the doctrine of res judicata. It was further averred by the respondents that petitioner had lifted much more quantity of Ashes etc. As detailed in the plaint and attributed to the petitioner theft/removal of precious/costly Railways material, in violation of terms/conditions of the contract, while lifting/loading the Ashes, leading to registration of criminal case. It was further pleaded in the written statement that petitioner failed to lift the Ashes from the area of loco-shops of Mughalpura, Lahore in spite of repeated notices and consequently, on account of petitioner's default contract was claimed to have been rightly cancelled.
4. Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge, sized of the matter, after doing the needful, on the basis of his appraisal of evidence, decreed the suit of the petitioner on 12-3-1998 with the findings that the petitioner will return the original cheques to the respondents and he will remove the contracted Ashes excluding the pieces of iron, mettle and nuts/bolts etc. Respondents being aggrieved of the decree passed by the trial Court filed an appeal before the learned Additional District Judge where they succeeded as their appeal was partly accepted on 26-10-1998 with the result noted above.
Petitioner, thereafter, filed instant revision petition, which was admitted to regular hearing and after completion of record, has now been fixed for final determination.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. The petitioner through his suit for declaration made the prayer, which reads as under:-- "In view of the above it is humbly prayed that a declaratory decree to the effect that the unilateral action of the defendants cancelling the deal in question and refunding the remaining cost of 1,70,000 C.Ft. Of Ashes/Shops Refuse' through Cheques Nos.368622 and 368623 dated 8-5-1993 on the sum of Rs,10,000 and Rs,5,40,541.40, respectively, is illegal, unlawful, void ab initio ultra vices, against the terms and conditions of the agreement dated 27-5-1991 and the same is based on mala fide intention for ulterior motives, with a cQnsequential relief to the effect directing the defendants to release the remaining 1,70,000 C.Ft. Of Ashes/Shops refuses to the plaintiff by due performance of their part of the agreement dated, 27-5-1991 and also restraining the defendants from releasing any quantity of Ashes/Shops Refuses to anybody else except the plaintiff, may very kindly be passed in favour of the plaintiff against the defendants with costs." (underlining is mine, to highlight the prayer).
6. The above reproduced prayer of the petitioner in his suit clearly depicts that a part of the contracted removal of Ashes/Refuse of shops was partly lifted by the petitioner and the contract was cancelled by the respondents, midest of its completion . It is also clear that petitioner had not claimed damages sustained by him on account of asserted unilateral/ unauthorized cancellation of the contract by the respondents. Contract was admittedly regarding sale of movable in form of Ashes/Refuse of Shops. Now without entering into controversy, as to who out of the parties was on fault because both of them had attempted to prove that his adversary was in fault and it is clear that petitioner had requested the Court for adjudgment of the action of the respondents canceling the contract besides praying its specific performance but the relief claimed could not be granted in view of specific provisions of section 12 of the Specific Performance Act, 1877 to the effect that specific performance of a contract may be refused in judicial discretion of the Court when the act agreed to be done is such and that for breach of the contract to transfer movable property can be relieved by way of compensation in money. Explanation to section 12 of the Act (ibid) is reproduced for ready reference and convenience, which read as under:-- "Explanation.--- Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved."
7. According to petitioner's own showings. Ashes/Refuse of Shops to the tune of 30,000 C.Ft. Had been lifted/removed by him and remaining part measuring 1,170,000 C.Ft. Was unauthroizedly not allowed to be removed by the respondents. The entire contractual price of the Ashes Refuse of shops being Rs,80,000 price of unfilled part of it was correctly worked out by the Appellate Court.
Since the breach committed by the respondents could be relieved by compensation in form of money specific performance was correctly declined by the Court of appeal.
8. As a matter of fact, petitioner should have filed a suit for recovery of damages suffered by him on account alleged unilateral unauthorized cancellation of the contract by the respondents in terms of section 57 of the Sales of Goods Act, 1930 which has been worded in the following manner:-- "Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may sue the seller for damages for non-delivery."
9. Petitioner did not opt to sue for damages under the above discussed provisions of law and had not detailed in the plaint the damages allegedly sustained by him, the Court of appeal rightly ordered return of price of the unlifted quantity of Ashes/Refuse of Shops, as petitioner had not encashed the cheques issued by the respondents. Scan of record and impugned appellate judgment revealed that controversy was correctly put to rest without committing any error of law/facts or illegality irregularity in terms of section 115, C.P.C.
10. For the reasons noted above, no case for interference in revisional jurisdiction of this Court was made out, and consequently instant petition being devoid of any merit is dismissed with no order as to costs.