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. 64,054.04.
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 lifting of Rs. 30,000/- C.FT. Of Ashes whereafter the lifting was forcibly stopped out of ulterior motives, though the respondents had rio such legal right. Petitioner claimed to have represented to the Railways Ministry where upon 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, respondents issued two cross cheques No. 368622 and 368623 dated 8-5-1994 for the amounts. Of Rs. 10,000/- and Rs. 54,054/40 respectively being the refund of cost of the un-lifted 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 defendant. 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. Railway 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 inspite 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, seized 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 removed 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 in the sum of Rs. 10,000/- and Rs. 54,054.40, respectively, is illegal, unlawful, void ab-initio, ultra vires, against the terms and conditions of agreement dated 27-5-1991 and the same is based on mala fide intention for ulterior motives, With a consequential. 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 any body 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, mildest 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 movables 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 adjustment of the action of the respondents cancelling 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 relied 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 relied by compensation in money and that the breach of a contract to transfer movable property can be thus relieved."
7. Accordingly to petitioner's own showings, Ashes/refuses of shops to the tune of 30,000 C.FT. Had been lifted/removed by him and remaining part measuring 1,70,000 C.FT. Was unauthorizedly not allowed to be removed by the respondents. The entire contractual price of the Ashes/refuse to shops being Rs. 80,000/- price of unlifted 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 recover of damages suffered by him on account alleged unilateral/unauthorized cancellation of the contract by the respondents in terms of Section 57 of the Sale of Goods Act, 1930 which has been worded in the following manner:--- "Where the seller wrongfully neglects or refuse to deliver the goods to 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 un-lifted 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. .