' JAWWAD S. KHAWAJA, J.---Bashir Ahmad respondent-plaintiff filed a suit against Mayo Khan petitioner-defendant seeking specific performance of an agreement to sell (Exh.D-1), dated 5-4- 1997. The case of the respondent was that the land had been agreed to be sold for a sum of Rs, 88,000, out of which Rs,20,000 had been paid by way of earnest money. The defence set up by the petitioner was that the respondent had himself backed out of the agreement. He also pleaded that although the amount of Rs,20,000 had been mentioned in the agreement by way of earnest money, the same had not, in fact, been paid.
2. The petitioner-defendant produced two marginal witnesses to the agreement, namely, Abdul Jabbar (D.W.2) and Muhammad Khalid (D.W.3), who confirmed that earnest money, had not been paid to the petitioner. Even the scribe, who appeared as a witness, deposed that the amount had not passed hands in his presence.
3. The suit, however, has been decreed to the extent of 14 Marlas on the basis of a purported compromise (Exh.P-1), which was relied -upon by the respondent-plaintiff. Learned counsel for the petitioner submitted that this compromise was never entered into by the petitioner. It was argued that the document was prepared by Sardar Muhammad Siddiqui Dogar, Advocate, who was originally representing the petitioner but was later substituted. Learned counsel also referred to the testimony of the said Advocate, who appeared as P.W.3. In the same, he stated that he did not remember that he was counsel for the petitioner. However, when confronted with the written statement filed in Court on behalf of the petitioner, he acknowledged his signatures on the same.
Additionally, it was argued that when the petitioner appeared as D.W.1, he was not confronted with the compromise (Exh.P.1).
4. On the above basis, learned counsel for the petitioner argued that the compromise had not been proved to have been entered into by the petitioner and, in any event, the same was an unconscionable agreement having been made by counsel, who originally was representing the petitioner. The said document was produced from the Court record although there is no order recorded by the trial Courtshowing that it had been submitted in Court by the parties. It was contended that considering the circumstances of the case and, in particular, the false plea set up by the respondent, firstly, as to the earnest money paid by him and, secondly, in relation to the compromise agreement (Exh. P-1), the discretionary relief of specific performance should have been refused in exercise of powers under section 22 of the Specific Relief Act.
5. Learned counsel for the respondent was not in a position to controvert the above submissions.
He, however, took up the plea that the compromise (Exh.P-1) was not admitted by the respondent and stated that the respondent was entitled to a decree for the entire 22 Marlas mentioned in the agreement (Exh.D-1) and not for 14 Marlas as per decree of the learned appellate Court. He also stated that the sum of Rs,20,000 was proved to have been paid, as held by the learned appellate Court, and that the balance amount of .Rs,68,000 had been deposited in Court pursuant to the order of the learned trial Court, dated 1-7-1999. I have considered the submissions of learned counsel for the respondent and find the same to be without merit. It is correct that the learned appellate Court has held that Syed Anjum Hussain Shah (P.W.1), who was the scribe of the agreement (Exh.D-1), had deposed that earnest money of Rs,20,000 was paid in his presence and in the presence of the marginal witnesses of the said agreement. This observation, however, is based on misreading of evidence because neither P.W.1 nor the two marginal witnesses (D.W.2) and (D.W.3) have stated that the earnest money was paid by the respondent to the petitioner.
6. At this point, it is also relevant to note the contents of theagreement (Exh.D-1), because these tend to support the petitioner's stance. In the document, the property, agreed to be sold, is mentioned as 1 Kanal, 2 Marlas. However, importantly, it has been noted therein that it will be the petitioner's responsibility to ensure measurement of the property and to deliver possession of the same to the respondent. This stipulation in Exh.D.1 is clearly indicative of the fact that there was some construction/encroachment on the land and, therefore, it was not possible to deliver possession of the same. It, therefore, is not reasonable to believe that possession of the land was delivered to the respondent-plaintiff.
7. Learned counsel for the respondent also acknowledged that there was a mosque on the land but stated that it covered only 2 Marlas out of the total area of 22 Marlas. Furthermore, the claim of the respondent was that he had raised construction on the property. For the reasons given above, it is not possible to believe that possession of the land was delivered by the petitioner, firstly, because of the contents of the agreement showing that the entire land was not readily available fordelivery and, secondly, because the major portion of the consideration amounting to Rs, 68,000 was still outstanding and had to be paid before possession was transferred. These circumstances provide good reasons for holding that the respondent is not truthful.
8. I next take up for consideration the alleged compromise (Exh.P-1). This compromise, as noted above, has been denied by the petitioner. Before me, even learned counsel for the respondent- plaintiff stated that no compromise had been filed in Court. With the assistance of both learned counsel, I have also gone through the order sheet of the trial Court which substantiates the plea of the petitioner that the parties had not entered into any compromise. Three dates of hearing i,e, 9- 6-1998, 22-6-1998 and 6-7-1998 record the fact that the parties are in the process of compromising the matter and on a fourth date of hearing i,e, 8-9-1998, it has been noted that the parties have entered into a compromise. The order, dated 8-9-1998 does not note that any written compromise was filed in Court. Instead the parties were summoned to appear in person to confirm the compromise. This was never done. In fact, on the next date of hearing, the petitioner substituted his original counsel by appointing Mr. Muhammad Ashiq Hashmi, Advocate to represent him. This fact also corroborates the stance of the petitioner that there was no compromise between the parties and that the document (Exh.P-1) had unauthorisedly been filed in Court by the petitioner's original counsel, Sardar Muhammad Siddique Dogar, Advocate.
9. The issue, which now remains to be decided, is whether the respondent, in the above circumstances, was entitled to a decree for specific performance of the agreement (Exh.D-1), dated 5-4-1997. As noted above the petitioner did not deny execution of the agreement. He pleaded that it was respondent, who had resiled from the agreement. Furthermore, the conduct of the respondent is also adverted to which shows that there are not equities in favor of the respondent-plaintiff. The respondent has, according to his learned counsel, taken possession of the suit-land. It has not been explained as to how and when this was done. Moreover, there is no reason ,to believe that the petitioner would have voluntarily delivered possession of the land when he had yet to receive more than eighty per cent of the sale consideration. Secondly, it is quite evident that if the respondent has raised construction as alleged by him today in Court, this has been done in violation of the status quo order passed by the learned Trial Court. The order sheet of the learned trial Court shows that the suit was filed during the summer vacations in 1997, i,e, four months after the execution of the agreement (Exh.D.1). The order of status quo was operative at that time. The conduct of the respondent shows complete disregard of the Court order and cannot, therefore, be countenanced.
10. In the foregoing circumstances, I find that the respondent is not entitled to specific performance of the agreement (Exh.D.1). The learned Courts below have proceeded to pass a decree for partial performance of the agreement (Exh.D.1) without taking, note of the conduct and lack of good faith of the respondent-plaintiff or even the material aspects of the case discussed above. Furthermore, the learned Courts below appear to have overlooked the provisions of section 22 of the Specific Relief Act and their power thereunder. The respondent's suit presents a prime example of a case where discretionary relief by way of specific performance had to be refused. This petition is, therefore, allowed and the suit of the respondent-plaintiff is dismissed with costs throughout.