' MUHAMMAD NAWAZ ABBASI, J.--- This direct appeal under Article 185(2) of the Constitution has been preferred against the judgment of Lahore High Court, Lahore, dated 8-1-2002 whereby Regular First Appeal bearing No,274 of 1992 filed by the respondent against the judgment, dated 29-11-1992 by virtue of which the suit for specific performance of the contract was dismissed by the Court of first instance, was allowed.
2. The facts of the case, in small compass, leading to the filing of this appeal are that the respondent filed a suit for specific performance of contract against the appellants on the basis of an agreement, dated 5-7-1988 entered with Mst. Aziz Fatima their mother through Muhammad Asif son of Abdul Rashid her general attorney for sale of the land measuring 84 Kanals, 1 Marla for a consideration of Rs,1,50,000 per acre and a sum of Rs,1,11,000 was paid as earnest money out of which the payment of Rs,11,000 was made in cash and remaining amount of Rs,1,00,000 was paid by means of pay order dated 4-7-1988. Mst. Aziz Fatima together with the appellants in continuation thereof executed a fresh agreement on 18-8-1988 whereby they having acknowledged the agreement dated 5-7-1988 admitted the receipt of the earnest money and further payment of a sum of Rs,2,82,984 vide cheque dated 18-8-1988 (the total payment of a sum of Rs,3,93,984). It was agreed between the parties that on payment of balance amount of Rs,11,81,016 by the respondent (vendee) by or before 30-1-1989, the sale-deed would be executed.
The appellants instead of performing the agreement in full, transferred an area of 60 Kanals and 11 Marlas vide registered sale-deed dated 7-2-1989, with the understanding that remaining area of 23 Kanals, 11 Marlas would be transferred on the settlement of internal dispute amongst the appellants but subsequently, on their refusal to perform their part of the contract to the extent of an area of 23 Kanals and 11 Marlas the suit for specific performance of the contract was filed. The appellants admitted the execution of the agreements and receipt of part payment of sale consideration with the assertion that the amount of Rs,7,41,329 paid through cheque dated 29-1- 1989 was adjusted towards the sale price in terms of the agreement on the understanding that respondent would pay the balance amount of Rs,4,39,687 within a fortnight from the execution of the sale-deed on 29-2-1989 for transfer of the remaining area of 23 Kanals and 11 Marlas but on his failure to pay the balance amount, the agreement to the extent of 23 Kanals, 11 Marlas stood rescinded. The suit was dismissed by the learned trial Court vide judgment, dated 24-11-1992 but in regular first appeal, the High Court while reversing the judgment of trial Court decreed the suit vide impugned judgment hence the present appeal.
3. The material facts relating to the execution of sale agreements dated 5-7-1988 and 18-8-1988, the payment of sale consideration to the extent of land of 60 Kanals, 11 Marlas and transfer of the said land vide registered sale-deed dated 7-2-1989, are admitted. The claim of the respondent was that the parties agreed to give effect to the major part of the agreement vide sale-deed dated 7-2-1989 with the mutual understanding that remaining part of the agreement would be performed on the settlement of family disputes of the appellants inter se, whereas the assertion of the appellants was that the sale-deed was executed in full satisfaction of the agreement with the understanding that remaining part of the agreement would be deemed to have been abandoned.
The learned counsel for the appellants on the basis of oral and documentary evidence brought on record, submitted that preponderance of evidence would show that the findings of the trial Court on the pivotal issue were based on sound reasons and were not suffering from defect of misreading or non-reading of evidence, calling for interference of the High Court in appeal. The learned counsel however, has vehemently contended that the . Payment of balance price in terms of the agreement within the stipulated time, was not made and in consequence thereto, the appellants had no obligation to fulfil the remaining part of the agreement, which stood rescinded by failure of the vendee to fulfil his part of the contract. The High Court in para.5 of the judgment observed asunder:-- "It is now to be seen as to whether the appellant paid the entire amount of consideration or not.
There is no denial of the execution of sale-deed (Exh.P.5). This document narrates that a sum of Rs,3,93,984 has been received in evidence and the balance amount of Rs,11,81,016 will be received in presence of the Sub-Registrar. The endorsement made on this document narrates that the vendor has admitted the receipt of Rs,3,93,984 and has received Rs,4,39,687 in cash while a sum of Rs,7,41,329 has been paid vide a cheque dated 27-1-1989 which was encashed in his presence and this entire amount of Rs,15,75,000 was received by the vendor from the vendee."
4. The contention raised by the learned counsel for appellants in support of this appeal has no substance. The agreement admittedly pertained to 84 Kanals, 1 Marla of land out of which 60 Kanals and 11 Marlas was transferred and no evidence was brought on record to suggest the abandonment or waiver of the agreement by the vendee to the . Extent of 23 Kanals, 11 Marlas or due to his delay or denial of payment, the position of vendor was changed and he could decline the specific performance on equitable consideration. The High Court after detail examination of evidence and considering all aspects of the case, has concluded that the agreement was alive for its performance and so much so the appellants have also pleaded in the written statement that in consequence to the non-payment of the sale price to the extent of 23 Kanals and 11 Marlas, the agreement in this behalf could not be enforced. The learned counsel for the appellants, has not been able to convince us that the contract was bifurcated with the intention not to enforce one part of it or that for unavoidable reasons, this part of the contract was not capable of being specifically performed.
5. The perusal of the record in the light of the arguments of the learned counsel for both sides, would not lead us to a conclusion different to that of the High Court in respect of the legal position regarding enforcement of the agreement. The learned counsel for the appellants, also has not been able to convince us that either the High Court has rendered the judgment contrary to law and facts of the case or omitted to consider an important question which may have material effect on the ultimate result of the case. This is true that grant of relief of specific performance is discretionary with the Court and this discretion must not be exercised in arbitrary manner, rather it being equitable relief, may not be granted against the equity and in the present case we find that equities favoured the plaintiff.
6. In the light of foregoing reason, we do not find any valid ground for interference in the judgment of the High Court and consequently, we dismiss this appeal with direction that if the sale price of the land measuring 23 Kanals, 11 Marlas in terms of the judgment of High Court has not been deposited, the same shall be deposited within four months with interest at the prevalent bank rate, failing which the judgment of the High Court shall be deemed to be set aside and that of the trial Court shall stand restored.