SYED HAMID ALI SHAH, J. --- Property known as 25 Kashmir Cottage, Jhika Gali Murri, measuring 5 Kanals, 2 Marlas 40 square feet, was sold by appellant., through_ an agreement to sell dated- 5.9.1991 (Ex.P-29). The agreement was subsequently substituted with another agreement dated 11.11.1991 (Ex.P-28). ,The price of land by virtue of subsequent agreement was enhanced to Rs.
63,00,000/- from Rs. 62,00,000/-, the earnest money was increased from Rs. 5,00,000/- to Rs.
20,00,000/- and an amount of Rs. 15,00,000/- was paid in addition, to Rs. 5,00,000/- towards the earnest money. The property was undemarcated and period for completion of the contract was fixed, as per novated contract, four months from the date of demarcation, The possession was delivered. The plaintiff also claims that huge amounts were spent on renovation and repair of the property.
2. The appellant served upon the respondents notice dated 22.1.1992, which was replied by learned counsel for the respondents on 14.3.1992. The communication reflects that both the parties accused each' other for non-performance of obligations under the contract. Appellant filed the suit for specific performance on 12.4.1992, while respondents filed the suit for possession on 19.4.1994. Both suits were consolidated and 14 consolidated issues were framed. Learned Trial Court proceeded to record evidence. During the course of recording of the evidence, the appellant lodged F.I.R. No. 16 (Ex.P-24) wherein the respondent was accused of procuring fake demarcation. Responde ,issaited the same in Writ Petition No 1716 of 1996, when quashment of F.I.R. Was declined and the writ petition was dismissed, vide ,order dated 14.11.1994 (Ex.P-22).The -matter, thereafter came up before learned Division Bench of is Court in I.C.A. No 12 of 1997 where the parties agr he settlement of dispute amicably. The order dated 26.3.1997 was passed, keeping in view the consensus of t its, that demarcation of the property be carried out thro through a Local Commission/Revenue Officer and after the ascertainment of urea to the satisfaction of the parties, the suit be decreed according to the terms of the agreement. Despite resolution, the matter was not resolved and order-by consensus was again assailed before the Honourable apex Court in Constitution Petition No. 394/1997. The Honourable Court vide order dated 4.12.1998 refused the grant of leave to appeal and directed the Trial Court to carry out demarcation through an expert and whatever the area is found on spot, the appellant be asked to pay the price thereof, according to the terms of the agreement.
3. Learned Trial Court, keeping in view the directions of this Court and of the Honourable apex Court, Vide order dated 15.5.1997, appointed a Joint Commission comprising of Tehsildar and Haji Muhammad Aslam (Retired) S.D.O. Buildings. The Commission was directed to demarcate the property, subject-matter of suit and to measure the property falling in the possession of plaintiff and also demarcate and measure the building, subject-matter of agreement alongwith the detail of its occupants. Although Court appointed Joint Commission, but each Local Commissioner submitted his report separately.
The appellant filed written objections, on the reports, as the reports, were silent on third point of reference. An additional issue (issue No. 13-A) was framed and evidence of the parties, was recorded in response thereto, Learned Court, vide impugned judgment and decree dated 7.7.1999, decreed the suit for specific performance of the agreement. The plaintiff was directed to pay the balance sale consideration of Rs. 43,00,000/- and a penalty of Rs. 5000/-per day as damages, as per stipulation of the agreement from 22.6.1992 till the date of payment. Two months' period was granted for payment and in case of non-payment within the stipulated period, the suit was deemed as dismissed with forfeiture of earnest money. Suit was treated as suit for possession and decree to that effect was also passed. The impugned' judgment and decree was assailed by both the parties, in these appeals, therefore, this single judgment will dispose of R.F.A. No. 110/1999 titled "Zaki Farooq v. Saeed Akhtar Malik etc." and R.F.A. No.. 153/1999 titled "Saeed Akhtar Malik v. Zaki Farooq", as both the appeals invoke common questions of fact, and the law and arose out of the same judgment. The parties will be referred in this judgment according to the parties name, as they appear in R.F.A. No. 109/1999.
4. Learned counsel for the appellant contended that after compromise before this Court, it was nobody's case that penalty be imposed. Perceiving that question of imposition of penalty was not in issue, the appellant led no evidence in this regard that the imposition of penalty was not in issue and why this point was not agitated in the written arguments, which the parties submitted before the Trial Court. It was contended. That framing of issue No. 13-A, rendered all other issues redundant. Learned Trial Court has unnecessarily stretched its jurisdiction and proceeded to decide other issues. Learned counsel went on to argue that the reports as to the demarcation, were not, credible and the F.I.R. Was lodged regarding the fake demarcation and fresh demarcation was directed by this Court, in the proceedings where question of F.I.R was in issue. Learned counsel submitted that while passing the impugned decree, learned Court has imposed penalty, ignoring the directions of this Court and also of the Honourable Supreme Court of Pakistan. The respondents have never claimed the penalty and their contest to the suit was rescission of contract and forfeiture of earnest money.
5. Learned counsel for the respondent (who is also appellant in connected Appeal No. 153/1999) contended that according to the terms of agreement to sell (Ex.P-28), the penalty for non- performance of the agreement is Rs. 5000/- per day and it has rightly been imposed upon the appellant. The land was twice demarcated and the appellant, instead of performing his part of contract, kept the respondents involved in criminal case (Ex.P/24). Transfer fee was deposited vide Ex.P.15, on 27.11.1.991. Transfer fee is received in the normal course, when the land sought to be sold, is ascertained and demarcated. The appellant had himself undertaken the responsibility of demarcation of the suit land,. According to the clear stipulation in the. Second . agreement to sell (Ex.P-29). It was submitted that appellant was never ready and willing to perform his part of contract. The suit was erroneously decreed in favour of the appellant. The contention was supported by relying upon the cases of "Mst. Amina Bibi v. Mudassar Aziz" (PLD 2003 S.C. 430), "Shaukat Ali and 3 others v. Javed Qureshi and 5 others" (2002 CLC 1578) and "Haji Abdul Hameed Khan v. Ghulam Rabbani" (2003 SCM R 953). Learned counsel added that valid demarcation stands proved through Ex.D-2, Ex.P-18 and Ex.P-19. The property was correctly demarcated, which fact stands established through the reports of Local Commissioners, which transpire that area in occupation of the appellant, is more than the one mentioned in agreements to sell. Learned counsel contended that appellant was in possession of suit land and in order to prolong his possession, he involved the respondents in frivolous litigation. He converted that, nature of the property commercial and vendee started earning from the suit property, without paying the balance amount of sale consideration. It was vehemently argued that institution of suit before the lapse of period for completion of sale, establishes the mala fides of the appellant. Learned counsel referred to the statement of witnesses and contended that demarcation dated 22.2.1992 was correct demarcation and appellant's refusal to accept the demarcation, entails no other consequences except rescission of the contract and forfeiture of the earnest money. Learned counsel submitted that it is essential for the vendee to keep the sale consideration ready for payment and sale consideration is required to be in the pocket of vendee to perform his part of contract. Learned counsel, in this regard, referred to the cases of "Mst. Zahida Begum and another v. Saeed Yousaf Sheikh and another" (1998 CLC 55), "Wall Muhammad v. Sardar Muhammad" (1998 M LD 536), "Noor Muhammad and another v. Muhammad lshaq and another" (2000 M LD 251) and "Board of Intermediate and Secondary Education, Lahore v. Saima Azad" (1996 SCM R 575).
6. Heard learned counsel for the parties and perused the record.
7. Issue No. 1 relating to maintainability of the suit, issue No. 3 relating.To male fides of the plaintiff, issue No. 4 relating to claim of special costs under Section 35-A and issue. No. 5 relating to cause of action, were not pressed by the plaintiff before the lower Court and were decided accordingly.
8. Issue No. 2 relating to forfeiture of earnest money of 20 lacs rupees was decided against the plaintiff that if he railed to perform his part of the contract and get the sale-deed executed in his favour in terms of the impugned judgment, the said amount will stand forfeited in favour of the defendants.
9. Issue No. 6 relating to the enforceability and effectiveness of agreements of sale dated 5.9.1991 (Ex.P-29) and dated 11.11.1991 (Ex.P-28) was decided against the plaintiff on the ground. That subsequent agreement did not contain a "superceding clause".
10. Issues Nos. 7 & 8 relating to the defendants' liability to get land demarcated before 30.4.1992 were decided in favour of the defendants with the observation/finding . That the property was got duly demarcated by the defendants on. 22.2.1992, as well as on subsequent dates but the demarcation could not be finalized due to the conduct of the plaintiff in raising unnecessary objections thereto.
11. Issue No. 9 relating to plaintiffs authority under the agreement to make alternation at the side was decided in favour of the plaintiff.
12. Issue No. 10 relating to inquiry about the disputed area under actual possession of the plaintiff was answered as 5 Kanals, 11 Marlas and 174 sq. Ft.
13. Issue No. 11 relating to forfeiture of remaining sale price 23 lacs rupees in favour of the plaintiff was decided against the plaintiff on the ground that the property had already been demarcated and the defendants were not at fault.
14. Issue No. 12 relating to plaintiffs entitlement to the decree for specific performance of the contract was decided in favour of the plaintiff with the condition that he would pay Rs. 43 lacs rupees plus 5 thousand rupees per day with effect from 22.6.1992 when he committed default in the payment of remaining sale price.
15. Issue No. 13 relating to defendants' entitlement to possession of the suit property, was decided with the observation that if the plaintiff failed to pay the remaining sale price of 43 lacs rupees plus 5 thousand rupees per day with effect from 22.6.1992, the defendants would be entitled to possession of suit property.
16. Additional No. 13-A related to the property of the report of local commission dated 2.10.1997, was decided against the plaintiff after considering his objections thereon.
17. Findings of learned Trial Court on issues Nos. 1, 3, 4, 5, 9 and 10 do not require any discussion as the findings are not controverted. Findings on issues Nos. 6, 7 and 8 need to be appreciated afresh (re-examined). The learned Trial Court found that agreement dated 11.11.1991 had not superceded the earlier agreement dated 5.9.1991 as there was no superceding clause in Ex.P-28. An examination of both the agreements shows that substantial amendments were made in the subsequent agreement of sale dated 11.11.1991 (Ex.P-28) e.g. The amount of sale price was increased by Rs. One lac; the time frame for implementation of the agreement was changed and its performance was made conditional on demarcation of the sold property to be carried out at the responsibility of the defendants. The vendee was also made liable to pay a penalty of 5 thousand rupees per day if he failed to make payment of the remaining sale price till the fixed date. The date of performance of the contract by the plaintiff/buyer was to start from the date of completion of demarcation. By all standards the subsequent agreement of sale dated 11.11.1991 had substituted the earlier contract dated 5.9.1991 and it had effectively novated the first agreement of sale, in terms of section 62 of the Contract Act, 1872. Accordingly the rights of the parties are governed by the subsequent agreement of sale Ex.P-28.
18. The period of 4 (four) months was fixed for the execution of sale-deed from the date of execution of the agreement of sale i.e. 11.11.1991. However, Ex.P-28 also mandated that the seller was bound to get the property demarcated during this period and that the _period for execution of sale-deed would be calculated from the date when the demarcation of the property in dispute, was completed. Learned Trial Court in its findings on issues Nos. 7 and 8 observed that the defendants/sellers had in tact got the property demarcated on 22.2.1992 and the sale therefore, had to be completed before 30.4.1992, but the plaintiff unnecessary objections to avoid and delay payment of the balance amount of cOnsideration and finally filed the present suit on 12.4.1992, even before the date which was fixed for finalization of demarcation i.e. 30.4.1992. Learned Court while reaching the conclusions had ignored subsequent later proceedings in this case.
19. While the civil suit for specific performance was pending and evidence was being recorded, the plaintiff registered a criminal case against the defendants under Sections 420/467/468/471/109, P.P.C. Read with Section 5 of the Prevention of Corruption Act, 1947 at A.C.E. Rawalpindi vide F.I.R. No. 16, dated 3.3.1996 alleging that demarcation carried out at the behest of the defendants was fictitious. A writ petition was filed for quashing of the FIR. Which was dismissed. An Intra- Court Appeal was filed against the dismissal order of the Honourable Single Bench. The IntraCourt Appeal was disposed of vide order dated 23.3.1991 with the following observation:-.
"Both the parties desired in the course of hearing of appeals that controversy between them be determined for good and for that it has been offered by both the parties that they are willing to abide by the terms of the agreement to sell already arrived at between the parties. In the larger interest, of the parties we are inclined to direct the learned Civil Judge who is seized of the civil suit for specific performance of contract between the parties to have demarcation of the property carried out through a local commission/Revenue Officer and after the area is ascertained to the satisfaction of the parties, the suit will be decreed in accordance with law on the terms incorporated in agreement to sell between the parties. The civil suit shall be disposed of positively by 30.4.1997."
20. The decision of Intra-Court Appeal was challenged before the Honourable Supreme Court but through order dated 4.12.1998 decided as under:- "The perusal of this para discloses that the learned Civil Judge who is seized of the civil suit between the parties has been directed to carry out the demarcation through an expert and whatever area out of the disputed land is found on the ' spot the petitioner should pay its price in accordance with the terms in the agreement to sell and the civil suit should then be decreed in accordance with law keeping in view the stipulations in the agreement. We feel that no criminal liability arises in the matter and the grievance of the petitioner can be redressed in accordance with law. We find no legal flaw in the impugned order as no offence is constituted on the .Admitted factual aspect of the case as narrated above. Leave is refused and the petition is dismissed."
21. The competing claims of the parties, their respective claims under the agreement and contractual obligations, are required to be determined in the light of above decisions. No departure from the judgments/orders dated 23.3.1991 and 4.12.1998 is legally permissible.
22. Proceeding further in the matter, in pursuance of the order of the High Court, learned Senior Civil Judge, Rawalpindi, through his order dated 15.5.1997 constituted a local commission comprising of Tehsildar, Revenue Murree and Haji Muhammad Aslam, Retired S.D.O. Building to demarcate the suit property. The relevant portion of the order of learned Senior Civil Judge is reproduced below:-- - "The parties have been allowed an opportunity to nominate some commission unanimously, but they could not succeed. Since land and construction both, have to be measured so, for causing demarcation of suit property, I issue a joint commission to the Tehsildar, Revenue Murree alongwith Haji Muhammad Aslam, Retired S.D.O. Building for the following reference:---
(i) To demarcate the property, subject- matter of agreement to sell dated 5.9.1991.
(ii) To demarcate and measure the property now falling in the plaintiff's custody.
(i.e) To demarcate and measure the building existing in land subject-matter of the agreement to sell dated 5.9.1991 alongwith their occupants.
The Commissions will cause demarcation on a date and time communicated to the parties through their counsel, telegraphically, as well through -Agency of this Court and they may seek assistance of Revenue and Municipal staff, if they so desired. The commissions may also get assistance from the documents.To be produced by the parties, if any, and they would make reference to these documents in their report. Fee of commissions is fixed at Rs. 5000/-each to be shared by the parties equally and to be deposited into Court within seven days.."
23. Subsequently the plaintiff moved another application and through order dated 14.6.1997, the earlier order of demarcation was amended so as to include in para No. 2 of the reference, mention of agreements dated 5.9.1991 and 11.11.1991 with direction to read them collectively for purposes or demarcation. The report of Commission was submitted on 21.10.1997 which was objected upon by the plaintiff through written objections. The learned Trial Court framed issue No. 133-A to be decided alongwith other issues to resolve the objections of the plaintiff.
24. We are of the view that the order dated 26.3. 1997 passed by the High Court in Intra-Court Appeal was a sequel to the "desire" or the parties to have the controversy determined "for good". In response to their desire, the High Court directed the Trial Court to arrange demarcation of property in dispute. The order of the High Court was approved by the Honourable Supreme Court and both the parties were estopped by their conduct as well as by the judgment of the Honourable Courts to back out from their commitment made in the Court. In any case the-judgment of the Honourable High Court and the Supreme Court had attained finality and are binding on the parties. The commitment of the parties before the Honourable High Courtt had altered Clause No. 2 of the agreement of sale dated 11.11.1991 and previous demarcations, if any, were of no consequence.
Since the parties had agreed on fresh demarcation, the penalty clause connected with agreement of sale-deed dated 11.11.1991 also ceased to exist.
25. According to the report of the Local Commission an area of 5 Kanals, 11' Marlas and 174 sq. Ft. Is found in possession of the plaintiff. We have gone through the objections raised by the plaintiff on the demarcation report dated 2.10.1999. These are mostly technical in nature and it has not been alleged or claimed that the plaintiff is in possession of lesser area than the'one shown in the report.
The plaintiff who appeared as a witness in support of his claim under issue No. 13-A also did not allege that the area transferred to him was 'less than the area shown in the demarcation report.
The demarcation report dated 12.11.1997 is coupled with a detailed site plan, which shows the area of the suit property is 5 Kanals, 11 Marlas and 174 sq ft. According to Ex.P-28 the plaintiff/buyer is liable to make payment of that area only which is found to be in his possession after demarcation and in the event' if the area falls short, an amount at the rate of Rs. 56,426/- per maria is to be deducted for the lesser area found, in his possession. The Hon'ble Supreme Court in its order dated 4.12.1998 had also confirmed this aspect of the agreement. The penalty clause could have been invoked, if the parties had stuck to their original stance, under the agreements to sell. Parties subsequently changed their stance, agreed for -fresh demarcation and completion of sale on the basis of demarcation through commission. The performance of agreement was made subject to fresh demarcation by mutual consent. The right to seek, imposition of the penalty, stood waived when the Honourable 'apex Court directed for carrying the, demarcation through commission and ascertainment of the area to the satisfaction of the parties. The parties which persuade a Court to decide the matter//is in a particular manner, cannot subsequently' deviate from it and the controversy has to be decided- in that manner. Parties curtailed their dispute to demarcation through commission and payment of sale consideration on the basis of area ascertained by the commission. The agreement becomes capable of performance when uncertainty or vagueness in the agreement is removed or made certain. When the parties left it to the decision, of commission to ascertain the area, the contract becomes capable of performance after determination of land subject-matter of the sale. The imposition of penalty will offend mutual consent of the parties and also the decision of this Court and the Honourable, apex Court. We are, therefore, not inclined to' accept the pleas of the plaintiff and are of the view that he has been transferred possession of 5 Kanals, 11 Marlas, 174 sq. Ft. He is, therefore, liable to make payment of the remaining sale price i.e. 43 lacs rupees. We are also of the view that as the agreement dated 11.11.1991 Ex.P-28 has been novated due to commitment of the parties before the Honourable High Court and the question of forfeiture of the earnest money or the remaining sale price in favour of either of the parties does not arise. We do not confirm the findings of the learned Court on issues Nos. 2 and 11.
26. In the sequel of above discussion, we modify the judgment and decree Of the learned Trial Court to the effect that decree for specific performance of contract regarding the suit property is passed in favour of the plaintiff subject to payment of the remaining sale price of 43 lacs rupees within a period of one month on receipt of the certified copy of this judgment, failing which the suit shall be deemed to have been dismissed. If the remaining sale price is paid by the plaintiff till the fixed date, the suit of the respondent shall stand dismissed. If the amount is not paid till the fixed date the suit of the respondents shall be deemed to have been decided in their favour and decree shall following accordingly.