' HAFIZ TARIQ NASIM, J.---Facts leading to this R.F.A. Are that respondent Syed Zafar Abbas Gillani, filed a suit for Specific Performance of Agreement to sell dated 5-10-2006 with permanent and mandatory injunction in the Court of learned Civil Judge, Ist Class, Lahore contending that the appellant/defendant along with her late husband Muhammad Yaseen Tahir was equally joint owner in possession of Property (Commercial) measuring 19 Marlas 25 sq. Ft. Situated at Plot No,9 Satluj Block IV-A, Allama Iqbal Town, Multan Road, Lahore through registered sale-deed dated 25- 2-1980, the appellant/defendant being a lawful owner in possession of equal share/portion measuring 9 Marlas 125 sq. Ft., out of the said Commercial property entered into an agreement to sell with the present appellant on 5-10-2006, the respondent/plaintiff purchased the equal share i.e, 9 Marlas 125 sq. Ft., from her under a total consideration of Rs,2,80,00,000; he paid the whole consideration amount to the said lady in shape of 700 prize bonds of Rs,40,000 each in presence of witnesses and she executed the agreement to sell in favour of said Syed Zafar Abbas Gillani and according to that agreement, the possession was handed over to him through tenant. It was also contended before the learned Civil Judge, Ist Class Lahore that it was agreed that the defendant/appellant will be bound to divide the property on or before 5-12-2006 by raising a construction of wall of 9 inch and also execute the sale-deed in favour of the plaintiff/respondent but on the target date i.e, 5-12-2006 the Respondent/plaintiff tried to contact the defendant/appellant but he came to know that the defendant/appellant had gone abroad on 8- 11-2006 however on her arrival in Pakistan on 15-12-2006 he contacted her and requested her to perform her part of contract but she postponed the matter on one pretext or the other.
2. On the other hand, the defendant/ appellant contested the suit; filed written statement with a specific stance that the respondent/plaintiff had no cause of action and locus standi; he is estopped by his own words and conduct and it is specifically mentioned in the written statement that the defendant/appellant did not agree to sell the suit property to the plaintiff/respondent; neither any price was fixed nor, any earnest money was received and also did not execute any agreement to sell in favour of the plaintiff/respondent so the suit be dismissed.
3. Out of pleadings of the parties the following issues were framed.
' Issues:
(1) Whether the plaintiff has no cause of action and locus standi against the defendant? OPD.
(2) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD.
(3) Whether the suit is not maintainable? OPD.
(4) Whether the suit has been filed with mala fide intention and ulterior motives? OPD.
(5) Whether the plaintiff has come to the Court with unclean hands? OPD.
(6) Whether the agreement to sell was executed by the defendant on 5-10-2006 pertaining to the suit property in consideration of Rs,2,80,00,000? OPP
(7) If issue No,6 is decided in affirmative, whether the plaintiff is entitled to get decree for specific performance of the agreement to sell dated 5-10-2006 with permanent and mandatory injunction?
OPP.
(8) Relief.
4. The learned trial Court decided the issue No,7 as the foremost important issue discussing the evidence of P.W.1 Syed Zafar Abbas Gillani i.e, respondent/ plaintiff, one Muhammad Ashraf S.-I. Of Finger Print Bureau as P.W.2 who deposed that the comparison of thumb-impression of appellant/defendant was made, which tally each other. One Zaigham Abbas appeared as P.W.3 and deposed that he was marginal witness of the agreement to sell and the defendant/ appellant received consideration in his presence.
5. One Allah Ditta son of Muhammad Ishaq appeared as P.W.4 and deposed that the plaintiff paid the whole consideration to the defendant in lieu of agreement to sell dated 5-10-2006 and he is marginal witness of the agreement and the defendant/ appellant received the consideration in his presence. Ghulam Haider stamp vendor appeared as P.W.5 and deposed that Mst. Naseem Akhtar defendant/appellant purchased stamp paper valuing Rs,100 from him.
6. On the other side, Mst. Naseem Akhtar appeared as D. W.1 and deposed that she was owner of the suit property and denied the alleged agreement to sell and as well as denied the receipt of any amount from the plaintiff/respondent. The learned Civil Judge, Ist Class, Lahore held that the appellant/defendant has sold out her respective share to Syed Zafar Abbas Gillani plaintiff who can step into the shoes of defendant, which will subject to partition by its metes and bounds, so the plaintiff/respondent with oral and documentary evidence has proved the execution of the agreement to sell dated 5-10-2006 and the issue was decided in C favour of the plaintiff. The learned Civil Judge, Ist Class Lahore after discussing the other issues decreed the suit of the respondent/plaintiff holding that "the plaintiff stepped into the shoes of the defendant. Nothing more nothing less which will subject to partition by its metes and bounds" through judgment and decree dated 28-5-2007. This R.F.A. Is filed against the said judgment and decree.
7. It is really surprising rat] unfortunate that the learned counsel for appellant did not utter a single word support of his case except to read prayer of the R.F.A. We put cert questions to the learned counsel for appellant but he kept silent and this attiti of the learned counsel create a doubt in mind, particularly when the respondent also an Advocate, his main witness Mr. Allah Ditta also an Advocate the agreement is on a stamp paper 100-rupees ignoring that the matter rela to Rs,2,80,00,000 and according to respondent/plaintiff the entire amount v paid to the lady in the form of 700-pr bonds of Rs,40,000 each.
8. It is really astonishing that a person is handing over 700-prize bonds of worth Rs,2,80,00,000 (the entire price of property) to a lady against a stamp paper of Rs,100 without getting the sale-deed executed. We cannot understand that how an Advocate who is paying Rs,2,80,00,000 to a lady and is not spending some hundred thousands on the sale-deed's registration and left the lady to go outside the country without' completion of sale-deed. The entire evidence on record reveals that the learned Civil Judge did not give any weightage to the statement of D.W.1 Le. Mst. Naseem Akhtar the present appellant, who categorically stated that she did not sell the said property, she did not enter into any agreement with Syed Zafar Abbas Gillani, and even she went to state to the extent that she does not know even the said Syed Zafar Abbas Gillani. In addition to this, the said lady categorically refutes receiving of any money from the said Syed Zafar Abbas Gillani. It is an important aspect of the matter that D.W.1 specifically deposed that the market price of the property is Rs,6,00,00,000 and no sane person can dispose it of in less than half price. So far the statement of P.Ws. Are concerned we have minutely scanned and could not find any convincing reason that alleged agreement to sell was made on 5-10-2006 the entire amount was paid on 5- 10-2006 and all the amount was paid in the form of 700-prize bonds of Rs,40,000 each but no effort was made by the respondent/plaintiff to get the sale-deed registered/executed and two months time was given to the appellant for getting the sale-deed executed and even the appellant/defendant was not stopped to go abroad. It is also an interesting thing that the statements of all the P.Ws are in facts stereo type and cannot be relied upon. We have noticed that there have been no cross-examination on the contention of the appellant/defendant that the actual value of the property is much more than 60 million, the respondent/plaintiff had allegedly paid to the appellant/defendant. The learned trial Court did not even consider this point on its own, which is a very deplorable error in view of property concerned and the value of the property. It would be useful to mention that the location of the property which in our view is the key to the instant matter. The property concerned is situated on the Main. Road of Allama Iqbal Town and has been rented out to a well-known shop operating since long time known under the name and style of "Raheem Store".
9. Coming back to the case in hand, after perusal of the trial Court record conducted in the Civil Court, we find it quite interesting to see that the main witness i.e, Mr. Allah Ditta examined by the respondent/plaintiff was also an Advocate; to our mind and even to a lay man's, would certainly be on a better footing for the purpose of conducting evidence and being examined as regards totally lay man who are not well-acquainted with the procedure of evidence for example examination-in- chief and cross-examination.
10. After the examination-in-chief, a report of Hand-writing Expert was also obtained who has given the report in favour of the respondent/plaintiff and confirmed the fact that the thumb-impression of woman i.e, the appellant/defendant tally's with back on the agreement to sell and therefore, strengthening his claim before the Civil Court and thereby obtaining a decree in his favour despite the fact that the appellant/defendant on thee other hand has stated the value of the property as 60-million rupees and the respondent/ plaintiff alleged that he has paid only rupees 28 million through 700 prize bonds of Rs,40,000 each which fact was not admitted by the appellant/defendant and stated that the respondent/plaintiff is trying to dispossess her illegally.
After perusal of record, we find the appellant/defendant's contentions very strong and we find it necessary to interfere in the matter for substantial justice to prevail and in order for the appellant to claim her right to the property she owns for the reasons mentioned below.
(i) In normal situation where an agreement to sell is executed between the two parties, usually a part of the total value of the property i.e, the purchase price is given as consideration for the agreement and the valid transfer of title takes effect on a registered sale-deed after payment of the balance agreed amount. In the present case, an Advocate who is deemed to be well acquainted with law and legal formalities has allegedly made the entire consideration for the property in question in lump sum in the agreement to sell which is quite incomprehensible given the effect . That the sale-deed had yet to be registered. If the full price of the property is paid to the seller in agreement to sell then to our mind there is hardly any need to be a registered sale-deed as the amount of stamp duty, CVT and other applicable Government charges can be paid through the agreement to sell alone.
'The Civil Court did not even consider this point and in the absence of the Civil Court to examine the respondent/plaintiff on the point we cannot see any reason as to why the appellant would want to sell her property at a throwaway price when she can herself dictate and demand the price of her own choice, giving the location and the nature of the property concerned. In the absence of any such indication as to why the property worth rupees 60 million is being sold at a throwaway price only at rupees 28 million, only possible conclusion to our mind is the connivance of the respondent/ plaintiff and his mala fide intentions to dispossess the real owner of the property through using his legal skills in the wrong direction and getting unjustly enriched at the cost of the appellant/defendant's real right.
(ii) Secondly, it is well-settled law that a Judge is at a discretion to grant relief in a suit for specific performance and that the remedy of specific performance is a discretionary relief which the Court after taking into consideration all the facts and circumstances of the case may or may not allow/grant.
11. In the circumstances mentioned above, it cannot safely be said that the agreement to sell is a genuine one and that the fact of payment of money through prize bonds when not admitting by the appellant/ defendant categorically, ther-fore, the possibility of connivance of the respondent/ G plaintiff against the appellant/defendant is further strengthened. It is noticed that the learned Civil Judge, Ist Class Lahore virtually did not advert to the well settled law that "grant of specific performance of agreement can be refused even if execution of the agreement was proved." In the present case, the appellant/respondent is an oldage lady; the entire alleged transaction seems to be a shame exercise; the appellant specifically denied the execution of such agreement, denied the receipt of any amount worth Rs,2,80,00,000 deposed in explicit terms that the suit property is of Rs,6,00,00,000 so keeping in view all these circumstances, following the law laid down in Abdul Aziz v. Abdul Rehman 1994 H SCMR 111 we consider it necessary to impart substantial justice and interfering in the decree awarded by the learned Civil Court by accepting the instant appeal and setting aside the decree of the Civil Court. Resultantly, the suit of the plaintiff/ respondent is dismissed.
'The R.F.A. Is accepted with no order as to costs.