' MUHAMMAD SAIR ALI, J.--- Pleading an oral agreement for sale of the property (1 kanal 0 Marla, 9 Sarsahi) i,e, 1126/B Peoples Colony No,2 Faisalabad, at a sale consideration of Rs,10,00,000 and payment of Rs,100,000 as earnest money, the appellant claimed decree for specific performance against the respondents through his suit dated 28-7-1992. It was also pleaded that offer and acceptance of the agreement completed on 28-9-1989 i,e, two years and 11 months before the suit (28-7-1992) and Rs,1,00,000 were paid as the earnest money through receipt dated 13-8-1989 (Exh.P.1). And that the parties also agreed to incorporate the above orally agreed terms into a written agreement on the requisite stamp paper. And that the stamp paper was purchased on 28- 9-1989 by respondent No,1 who wrote and signed the written terms thereupon as Iqrarnama for the sale (Exh.P.2). But the sale consideration entered therein was Rs,15,30,000 and not the orally agreed sale price of Rs,10,00,000. And that on refusal of the respondents to make the sale on the orally agreed terms, the suit by the appellant was filed to seek the enforcement of the alleged oral agreement at the purported sale price of Rs,10,00,000.
2. The respondents jointly submitted their written statement on 2-12-1992 denying the oral agreement at the sale price of Rs,10,00,000 but admitting receipt of Rs,100,000 as the earnest money through Exh.P.1 but on the basis Of terms written in Exh.P.2 for the sale of the suit property at Rs,15,30,000 and not at Rs,10,00,000. The respondents as the defendants also asserted that as the appellant plaintiff refused to accept, make and sign Exh.P.2, no agreement between the parties for the sale of the suit property was made. And that the respondent therefore returned the earnest money of Rs,1,00,000 through cheque dated 18-2-1990. And that no agreement came into existence to vest in the appellant a right or cause to seek a decree.
3. Following issues were framed by the learned trial Judge:- "(1) Whether there was no contract executed between the parties? OPD
(2) Whether the plaintiff's suit is not maintainable? .OPD
(3) Whether the plaintiff is estopped by his words and conduct to file the present suit? OPD
(4) Whether the plaintiff has no cause of action? OPD
(5) Whether' the agreement-to-sell dated 28-9-1989 was executed between the parties? OPP
(6) Whether the plaintiff has paid any earnest money to the defendants? OPP
(7) If issue No,6 proved in positive, whether the plaintiff is entitled for the decree of specific performance of the contract after the payment of the amount to the defendants? If so, its effect?
OPP
(8) Relief."
4. The appellant produced P. W.1 to P.W.3 as his ;evidence and appeared as. P.W.4. Exh.P.1, Exh.P.2, Mark "A" 'and Mark "B" were also produced by him. The respondents produced D.W.1 to D.W.4 while respondent No,2 appeared as D.W.5 being the attorney of respondent No,1 i,e, his wife. Exh.D.1 to Exh.D.4 were produced as the documentary evidence.
5. The learned trial Judge decided Issues Nos.1 to 4 against the respondents. Issues Nos.5 to 6 and 7 were decided against the appellant plaintiff. The suit was accordingly dismissed through judgment and decree dated 26-10-1995.
6. Against, the above judgment and decree, R.F.A. No,56 of 1996 was filed before this Court .It was admitted for the regular hearing on 29-1-1996. On enhancement of the pecuniary jurisdiction of the learned District Judge through Civil Courts (Amendment) Ordinance, 2002, the first appeal was sent through order dated 3-3-2003 to be heard by the learned District Judge.
The appeal was heard by the learned Additional District Judge Faisalabad who through his judgment and decree dated 1-6-2004 dismissed the same thereby upholding the judgment and decree dated 26-10-1995 of the learned trial Judge. Hence the present second appeal.
7. The learned counsel for the appellant contended that both the parties admitted transaction of sale and existence of agreement between them but the only dispute was whether the agreed sale price was Rs,10,00,000 as asserted by the appellant or Rs,15,30,000 as claimed by the respondents.
Further that both the Courts held that the oral agreement was not proved but the written agreement (Exh.P.2) was proved, wherefor the learned Courts below should have decreed the suit in favour of the appellant at Rs,15,30,000 on rejection of the appellant's price of Rs,10,00,000. Also that the learned Courts below erred at law by holding that the earnest money of Rs,1,00,000 was returned by the respondents to the appellant in order to rescind the agreement for which no issue was framed by the learned trial Judge.
' Contrarily the learned counsel for the respondents contended that the receipt for earnest money dated 13-8-1989 (Exh.P.1) neither mentioned the names of the parties nor the sale consideration, to be a proof for the alleged oral agreement to sell at the purported price of Rs,10,00,000. Further that the document dated 28-9-1989 (Exh.P.2) was admitted to have been received by the appellant as sent by the respondents for execution/signatures by the appellant to become the agreement to sell at the sale price of Rs,15,30,000 with the balance of Rs,14,30,000 payable by 29-11-1989 for the sale-deed. And that the appellant neither executed nor signed this agreement but instead kept the same in his possession from 28-9-1989 till production in evidence by him as Exh.P.2 in 1995. And that upon non-execution of this agreement by the appellant, the earnest money of Rs,1,00,000 was sent back to the appellant through his brother by a cheque (Exh.P.4) written in the name of the appellant. And that the appellant was a tenant of the respondents in the suit property and ejectment orders against him became final on the Honourable Supreme Court's order dated 25-3- 1998 directing him to vacate the suit property by 25-7-1998. Also that the appellant neither filed a suit nor took any proceedings or gave any legal notice to the respondents to avoid or reject the terms of Exh.P.2. And also that he neither took steps to purchase the stamp paper for the alleged sale deed nor did he appear before the Registrar etc. For completion thereof. It was emphatically contended that the specific performance being a discretionary relief cannot be allowed to the appellant in view of his fraudulent conduct.
8. Heard.
9. Through their pleading and depositions, the parties admitted agreeing at the sale/purchase of the suit property and exchanging the earnest money of Rs,1,00,000 per receipt i,e, Exh.P.1. They differed at the most fundamental term/condition qua the sale price.
10. The appellant as the plaintiff pleaded and persisted on an oral agreement alleging sale price at Rs,10,00,000. The respondents as the defendants denied this oral agreement. They asserted terms of the transaction as incorporated in the document dated 28-9-1989 (Exh.P.2) stipulating sale consideration of Rs,15,30,000. In para. 4 of the plaint, the appellant expressly admitted receipt of this agreement as subscribed upon the stamp paper dated 28-9-1989 but denied the sale price of Rs,15,30,000 as was therein recorded. The appellant thus denied Exh.P.2 to be the agreement between the parties. He neither completed this agreement nor signed it. Instead he kept the same with him for a period of about three years without challenge. He neither took proceedings to revoke/cancel this document nor did he file a suit to avoid it It was in his plaint dated 28-7-1992 that the appellant objected for the first time to the amount of sale consideration recorded in Exh.P.2 which was produced by him on 30-1-1995 in his evidence as Exh.P.1. Though received in September, 1989, the appellant denied to own, execute and sign Exh.P.2 as per his plaint wherein he alleged and sought enforcement of his oral agreement with Rs,10,00,000 as the purported sale price. This plea was concurrently rejected by the learned Courts below on thorough analysis, appreciation and evaluation of evidence and record. The learned subordinate Courts instead accepted the case of the respondents on Exh.P.2 and return of the earnest money of Rs,1,00,000 by the respondents to the appellant by a cheque (Exh.P.4) through the appellant's brother who being the best witness on the subject was not produced by the appellant. Thus the presumption of adversity against him.
11. The learned Additional District Judge Faisalabad in the impugned judgment dated 1-6-2004 confirmed the findings of the learned Civil Judge by recording that:--- "Perusal of the record reveals that the only controversy between. The parties at the initial stage Was sale money of the suit property. As per version of the appellant, it was fixed at Rs,10,00,000 and as per respondents, it was Rs,15,30,000. The appellant in order to prove his case examined three witnesses and he also appeared as P.W.4. The appellant examined Rizwan Safi as P.W.1 who is marginal witness of receipt Exh.P.1 but the receipt Exh.P.1 does not disclose the name of the parties of the agreement and the sale price of the suit property is not there which is the bone of contention between the parties. P.W.2 Fazal Ellahi states that Exh.P.1 was written in his presence but he is not a marginal witness of the document Exh.P.1. Similar is the position of the P.W.3. As main emphasis of the appellant is on the receipt Exh.P.1 but this receipt has neither been fully proved by its alleged marginal witnesses nor it contains the full particulars and terms and conditions of the sale agreement executed between the parties whereas the sale agreement Exh.P.2 bears the sale price of Rs,15,30,000.
' On the other hand, the respondents by oral as well . As documentary evidence has proved that sale price even at the time of execution of receipt Exh.P.1 was fixed at Rs,15,30,000 and not as Rs,10,000,00 and that the earnest money of Rs, one lac was returned to the real brother of the appellant namely S.M. Iqbal Advocate, as is proved from the documents Exh.D.1.2. The appellant did not examine. S.M. Iqbal Advocate to disown the receipt of Rs,1,00,000 front the respondents and this presumption also goes against the appellant. The possession of the suit property is also admittedly with the respondents which they have got through ejectment petition."
12. The learned counsel for the appellant has not been able to show any misreading Or non- reading of evidence by the learned Courts below in recording the above findings of fact.. The decision of the learned , subordinate Courts is neither contrary to the law nor have the learned Courts failed to determine the material issues. A vain endeavour was made by the appellant's counsel to contend that an essential issue on the return of the earnest money was not framed by the learned trial. Court and non-framing of issue led to mistrial. This ground was raised for the first time in this second appeal without explaining the appellant's failure to claim such an issue at the trial stage or in the first appeal.
' Even otherwise return or refund of the earnest money was not the main litigated question to require a separate issue for adjudication of the suit. The parties to the suit were neither ambiguous nor unmindful of the collateralneous of this controversy qua the main issues. Both the parties led their evidence on refund/return of the earnest money and the learned Courts accordingly and adequately' ruled thereupon. Wherefor this Court believes that no independent issue thereto was needed and the impugned judgments and decrees du not suffer from any legal, factual or procedural error to deserve appellate intervention of this Court.
13. Furthermore on refusal to execute/sign Exh.P.2 and to acknowledge the sale price of Rs,15,30,000 stipulated therein, the appellant has no right to the alternate plea and prayer of seeking enforcement of Exh.P.2 through a decree at Rs,15,30,000. The appellant blatantly denied the terms of Exh.P.2 by insisting and suing upon the oral agreement on purported sale price of Rs,10,00,000 and thus involved the respondents in false litigation for a period of 18 years. As such the appellant, even otherwise, cannot be held to be entitled to the equitable and discretionary relief of specific performance particularly when the prices of property and construction escalated unproportionately during the period of litigation.
14. The appeal is dismissed with costs throughout.