MIAN SAQIB NISAR, J. --- The suit for the specific performance filed by the appellant against the respondent has been dismissed by the learned Civil Judge vide judgment and decree dated 13.02.1994. Appeal of the appellant has also failed on 07.05.1995, hence this second appeal.
2. Briefly stated the facts of the case are that on 02.04.1990, the appellant brought a suit for the specific performance of an agreement qua the suit land measuring 30 Kanals and 7 Marlas situated in Muaza Rarkhi Kalan, Tehsil Pasroor, District Sialkot claiming that vide agreement dated 13.06.1988 (Ex.P.1), respondents Nos, 1 to 4 had agreed to sell 49 Kanals and 16 Marlas of land alongwith one Mst. Fatima Bibi, but at the time of execution, Mst. Fatima Bibi, refused to sell her share and, therefore, the remaining defendants, who have the share in the suit land to the extent of 30 Kanals and 7 Marlas, are bound to perform their obligation under the said agreement; they had received the consideration of Rs, 92,000/- as earnest money and on the payment of the balance amount of Rs, 31,828/- excluding from the total consideration of Rs, 2,00,000/- the price payable to.
Mst. Fatima Bibi, who .refused, the respondents Nos, 1 to 4 are bound to execute the sale-deed in favour of the appellant. It is further stated that the possession of the property had been delivered to the appellant at the time of the agreement to sell and that any sale executed by the said respondents Nos, 1 to 4 in favour of respondent No, 5 through a sale-deed dated 11.07.1989 is ineffective against the appellant's rights and thus, be cancelled.
9. The respondents/defendants contested the matter and out of the pleadings of the parties, the following issues were framed:--- ISSUES:
(1) Whether the suit is bad for mis-joinder of causes of action? OPD.
(2) Whether the suit is bad for being partial performance of the agreement? OPD.
(3) Whether the suit has not been correctly valued for the purposes of Court-fee and jurisdiction, if so, what is the correct valuation? OPD.
(4) Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD.
(5) Whether the plaintiffs are not entitled to specific performance of the agreement because of the reason stated in preliminary objection No, 5 as such the plaintiffs are estopped by their words and conduct? OPD.
(6) Whether the plaintiffs are entitled to the decree as prayed for? OPP.
(7) Whether the plaintiffs have not come in the Court with clean hands? OPD.
(8) Whether the defendant No, 5 is bona fide purchaser for consideration without notice? OPD-5.
(9) Whether the defendant No, 5 has superior right of pre-emption qua the plaintiffs, is so, its effects on the present suit? OPD-5.
(10) Whether the sale of the suit property by defendants Nos, 1 to 4 in favour of defendant No, 5 is illegal, void and ineffective on the rights of the plaintiff? OPP.
(11) Relief.
The learned Civil Judge, by returning his findings on issues Nos, 5, 8 and 10 in favour of the respondents, has dismissed the suit holding that the appellant in fact was not ready and willing to perform his part of the agreement and thus, equitable discretionary relief of the specific enforcement of the contract, cannot be granted to him; it has also been held that respondent No, 5, the subsequent purchaser of the suit land, being co-shares of the Khata, has the superior right of pre-emption and, therefore, the plaintiff is disentitled to the decree for the specific performance. In this regard, the Trial Court has relied upon the judgment reported as Nawab Meah Chowdhury v.
Syed Ezaz-ud-Din Ahmad and others (PLD 1962 Dacca 655). Appeal of the appellant has also failed.
4. Learned counsel for the appellant contends that respondents Nos, 1 to 4 in a clear and unequivocal term have admitted the execution of the sale agreement, however, they alleged that the earnest money of Rs, 18,000/- instead of Rs, 92,000/- was paid, but this has been admitted by the defendants in their legal notice that the amount of Rs, 92,000/- was paid at the time of the execution of the agreement. It is further stated that the appellant throughout has been ready and willing to perform his part of the agreement; respondents Nos, 1 to 4 have served upon the appellant legal notices (Ex.D.3 and Ex.D.4) and in reply thereof through Ex.D.1 and Ex.D.2, the appellant very clearly stated that he is prepared to pay the balance amount provided the respondents execute the sale-deed in favour of the appellant and his partners; but it is the respondents, who refused in this behalf and resultantly, the appellant cannot be blamed in the matter. It is further argued that the reasoning of the Courts below about the pre-emption is absolutely devoid .of any force, because the Punjab Pre-emption Act, 1913 has since been repeated by Punjab Pre-emption Act, 1991 and the right of pre-emption under 1991 Act is subject to the making of the Talabs, which stage in the matter has not yet arrived. He lastly argued that only for the reason that the appellant had joined with him partners in the transaction and required the respondents to transfer the property to them as well, would not come in the way of the appellant to hold that he was not ready and willing to perform his part of the agreement. Reliance in this behalf has been placed upon Abdul Aziz v. Fazal Karim and another (1989 SCM R 1456).
5. Heard. Admittedly, the agreement to sell dated 13.06.1998 (Ex.P.1) was executed between the appellant and respondents Nos, 1 to 4 and the name of Mst. Fatima Bibi, is also recited as one of the sellers in the document, but it does not contain her execution. The land mentioned in the said agreement in 49-Kanals and 16-Marlas. It is the case of the appellant that Mst. Fatima Bibi, had refused to sell her share in the land and it is thus for this reason that she did not execute the document. Although, there are no signatures of Mst. Fatima Bibi, but through the notice Ex.D.3, issued by the counsel for respondents Nos, 1 to 4 and Mst. Fatima Bibi, it is clear that she was also inclined to sell her share in favour of the appellant for which, the appellant had paid the earnest money. It is also an admitted fact that the parties had agreed for the finalization of the transaction by 31.03.1989, but from the evidence led by the appellant, it is not proved that he before the target date had approached the sellers, requiring them for the finalization of the transaction in his favour.
It is also not established if before the said date he had made any efforts for the purchase of the stamp paper and the scribing and preparation of the deed and had contacted respondents Nos, 1 to 4 in this regard. This also is an admitted position that a legal notice dated 12.04.1989 (Ex.D.3) was issued to the appellant by Ch. Salamat Ali Bajwa, Advocate on behalf of respondents Nos, 1 to 4 and in the notice, Mst. Fatima Bibi has also shown the willingness to sell her share. In the notice, it is stated that the appellant should come to the office of the above-named Advocate on, 25.04.1989 with the balance amount of Rs, 1,08.000/- and seek the execution and registration of the sale-deed, but instead of doing the needful, the appellant replied to the notice on the last date i,e, 25.04.1989, alleging that he had, on many occasions, asked the respondents to execute the sale-deed ,in his favour and also his partners, but they have failed. However, through any convincing evidence, the appellant has failed to establish as to when he had made such approach, which was declined. It is also mentioned in this reply (Ex.D.1) that the appellant has sought the finalization of the transaction in favour of his partners, but the respondents have declined. It may be pertinent to state here that neither the names of the partners are mentioned in this document, nor is their any reference in the sale agreement. Even after this reply, no steps were taken by the appellant for the finalization of the transaction; in this situation, the respondent on 22.05.1989 again sent another legal notice (Ex.D.4) to the appellant; this time apprising him that his clients are not inclined to sell the land in the name of any third person; they requested the appellant to have the execution of the sale-deed in his name and thereafter to sell it to any person of his own choice. In this notice, the appellant was asked to come to the office of the counsel of the respondents by 30.05.1989 with the balance amount of consideration. But the appellant did not respond rather on 03.06.1989 sent reply (Ex.D.2) to the notice (Ex.D.4) and reiterated his demand that the sale should be executed in the names of his partners as well.
6. It may be important to mention here that in the agreement to sell, it is nowhere mentioned that the appellant can seek the sale-deed in favour of any of his partners or the nominee. It may also be stated 'that in order to have the discretionary equitable relief of the specific performance in his favour, it was incumbent upon the plaintiff/appellant to show his readiness and willingness, but the notices and the replies thereto prove that the appellant was only making the loud assertion of being ready and willing, but no positive step was taken by him in this direction. Moreover, as stated earlier, the appellant has not led any credible evidence as to when he had approached respondents Nos, 1 to 4 for the purposes of executing the sale-deed in his favour alongwith the money and it is they who had declined. On the contrary, the respondents have been asking the appellant to be present in the office of their counsel and also before the Sub-Registrar for the finalization of the transaction and he had failed.
In the' light of above, I concur with the findings of the Courts below that the appellant was not ready and willing to perform his part of the agreement by making the balance payment, rather has been seeking time and delaying the transaction on extraneous demands. It may also be pertinent to mention here that the agreement to sell is dated 13.06.1988 and the date for the performance is 31.03.1989, but the present suit had been brought by the appellant on 02.04.1990. Though the suit is within time, but no explanation has been given as to why this delayed action was taken.
7. As regards the question about the exercise of discretionary relief on account of the reasons that respondent No, 5 has purchased the property before the suit was filed by the appellant and the refusal of the discretionary relief by the Courts below on the basis of the law laid down in PLD 1962 Dacca 655, suffice it to say that admittedly respondent No, 5 in the co-sharer of the property; he had purchased the property from the other respondents before the institution of the suit; he undisputedly has the superior right of pre-emption as against the appellant, whereas the appellant has no such right or the qualification. Only for the reason that such right is subject to Talabs, does not, in any way, impeded the Courts to take into account the above factor while exercising their discretion under Section 22 of the Specific Relief Act, which provides "the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such a relief merely because it is lawful to do so." Though the discretion in the specific performance matter should not be arbitrarily, whimsically or fancifully exercised, yet in the exercise thereof, the Courts cannot loose sight of a significant fact that respondent No, 5, who has bought the property for valuable consideration, has a right of pre-emption, may be subject to the making of Talabs, which no more is a predatory right, rather is a right which is statutorily recognized and is based upon the Injunctions of Islam. It is most improbable that a person who has purchased the property and is contesting the action for the specific performance would default in the making of the Talabs and shall give a walkover to the appellant in procuring the sale on the basis of the decree for the specific performance. It may also be mentioned here that in the case from the Dacca jurisdiction, cited above, the right of preemption of the subsequent vendee was not based upon any statutory law, but under the Islamic common law, which provided for the making of the requisite of the Talabs and yet the discretion was not exercised in favour of the plaintiff of case. Therefore, I do not find that on account of the provision of 1991 Act, making the Talabs as pre-requisite for the valid claim of pre-emption has brought any change in the rules about the exercise of discretion, which are to be kept in view by the Courts in allowing or disallowing the relief for the specific performance. For whatever has been discussed above, I do not find any merit in this appeal, which is hereby dismissed.