' IJAZ UL AHSAN, J.---This appeal arises out of the judgment and decree dated 28-4-2010 passed by a learned Civil Judge at Sialkot. Through the impugned judgment and decree, the learned trial court decreed a suit for possession through specific performance filed by the respondent.
2. Brief facts of the case are that the respondent filed a suit for possession through specific performance with regard to land measuring 1 kanal and 10 marlas comprised in Khewat No,149, Khasra No,694 situated in the revenue estate of Pucca Garah, Tehsil and District Sialkot. It was alleged in the plaint that the appellants had entered into an agreement to sell with the respondent on 25-10-2005 for the sale of aforesaid property for a total sale consideration of Rs,25,05,000. A sum of Rs,1,00,000 was allegedly paid as earnest money in the presence of witnesses. The time to conclude the transaction was fixed as 6 months. However, in view of the fact that a dispute regarding the land in question was pending between the appellants and 3rd parties, it was alleged in the plaint that the period stood extended till resolution of the dispute. The respondent/plaintiff alleged that he was ready and willing to perform his part of the contract, but the appellants had failed to execute a sale deed in his favour.
3. The suit was contested by the appellants, who filed a written statement. Out of divergent pleadings of the parties, the learned trial court framed as many as 7 issues. Except Issue No,1 relating to the question whether time was of the essence of the contract, the onus to prove rest of the issues was placed on the appellants.
4. The respondent/plaintiff produced Ch. Ghazanfar, Advocate as P.W.1 and Nasim Ahmad as P.W.4.
He also produced agreement to sell as Exh.P-1 and a copy of record of rights Exh.P-2 showing the ownership of the appellants.
5. The appellants/defendants produced Maqbool Ahmad defendant as D.W. 1 and Muhammad Abid Chaudhry as D.W.2. They also produced copies of sale-deeds relating to the properties situated in the same Mauza through which they sold other portions of the same property in favour of the respondent. After recording of evidence and hearing the parties, the learned trial court decreed the suit in favour of the respondent/plaintiff with the direction to deposit the remaining sale consideration of Rs,24,05,000 within fifteen days. The said amount has since been deposited.
6. At the very outset, it may be observed that the appellants/defendants admitted agreement to sell dated 25-10-2005 in their written statement. It was, however, submitted that the agreement stood cancelled on account of failure on the part of the plaintiff/respondent to perform his part of the contract and the earnest money stood forfeited. In paragraph-4 of the preliminary objections, It was stated that the plaintiff/respondent was repeatedly approached to get a sale deed registered, but he kept putting off the matter on the one pretext or the other. D.W.1 also admitted in his cross- examination that he was an educated person, the written statement had been drafted on his instructions and he had read the written statement before signing the same. He also admitted in his cross-examination that there was an agreement to sell but no notice had been given to the plaintiff/respondent regarding forfeiture of the earnest money and cancellation of the agreement to sell. It is, therefore, quite safe to conclude that no proof of the agreement to sell was required and the learned subordinate court was justified in relying upon the agreement to sell and contents there of. We also note that the receipt of earnest money was not specifically denied.
Consequently, no further proof either of agreement to sell or receipt of earnest money was needed.
Reference in this regard may usefully be made to "Mst. Zainab Khatoon v. Amir Abdullah Khan" (PLD 2004 Lahore 330) and "Mst. Umatul Mobeen v. Muhammad Aziz" (2010 YLR 1216)..
7. The learned counsel for the appellants submits that in order to succeed in a suit for specific performance, the plaintiff must establish presence of an agreement to sell, payment of consideration, the fact that he was ready and willing to perform his part of the contract and that the suit was filed within time. He submits that all the aforesaid ingredients were lacking in the suit, which was not liable to be decreed. He further contends that the learned trial court did not correctly frame issues and the onus to prove most of the issues was wrongly placed on the appellants. Points out that there was no occasion for the learned trial court to hold that the plaintiff/respondent was willing to perform his part of the contract.
8. It is further contended that the main cause for delay filing the suit, which was filed about 2-1/2 years after the execution of the agreement to sell was that there was some dispute relating to the suit property pending between the appellants and 3rd parties. He submits that neither any issue was framed in this regard nor did the respondent adduce any evidence to substantiate that claim.
The learned counsel submits that specific performance cannot be granted as a matter of right and is discretionary in nature. According to him, the facts and circumstances of the case did not warrant a decree for specific performance. If at all the learned court was inclined to grant any relief to the respondent, the same may have been given by way of compensation. Referring to the evidence adduced by the respondent, he submits that the same is inconsistent and contradictory insofar as the witnesses are not consistent regarding the place, time and venue of the agreement to sell. He finally argues that the agreement to sell is not signed by the respondent and as such is not enforceable.
9. The learned counsel for the respondent has defended the judgment and decree of the learned trial court. He submits that the execution of the agreement to sell was admitted by the appellants and no further proof was required. He further submits that the appellants never took the defence in their written statement that they had executed two other sale deeds in favour of the respondent or that the agreement to sell was manoeuvred. He adds that an attempt was made to build a different defence during recording of evidence which could not be allowed. He submits that the issues were properly framed in the light of the pleadings of the parties and in any event in terms of section 99 of the Civil Procedural Code, a decree, cannot be reversed merely on the ground of any defect or irregularity in any proceedings in the suit not affecting the merits of the case or jurisdiction of the court. He finally argues that the respondent had 3 years from the date of the agreement to sell to file a suit for specific performance. The same was, therefore, within time and the learned subordinate court was justified in decreeing the same in favour of the respondent.
10. We have heard the learned counsel for the parties and have gone through the record.
11. As discussed above, the appellants admitted the agreement to sell at various places in their written statement as well as their evidence. In his cross-examination, DW-1 categorically admitted that there was an agreement to sell between the parties and the appellants never gave any notice to the respondent to pay the balance sale consideration. In terms of Article 81 of Qanun-e- Shahadat Order, 1984, the admission of a party to an attested document of its execution shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. It may be noted that in the agreement to sell Exh.P-1, the property was agreed to be sold at the rate of Rs,83,500 per marla. It was acknowledged that a sum of Rs,1,00,000 was received as earnest money and the sale transaction was to be completed within 6 months. Further, the appellants admitted that a dispute was pending between them and 3rd parties relating to the property in dispute which they undertook to settle through arbitrators and thereafter inform the respondents.
12. It is not the case of the appellants that they had intimated the respondent that such dispute had been resolved, and that they were ready and willing to perform their part of the contract.
Further, it was admitted by the witnesses of the appellants that no notice was ever issued to the respondent to the effect that he should perform his part of the contract failing which the agreement to sell will be cancelled and the earnest money forfeited. We are, therefore, of the opinion that considering the conduct of the parties and the evidence including documentary evidence available on record, the learned trial court was quite justified in exercising its discretion in favour of the respondent by decreeing his suit for specific performance.
13. We find that there was a valid agreement to sell which stood proved by reason of a categorical admission on the part of the appellants. Receipt of earnest money was also not denied. In view of existence of a dispute between the appellants and 3rd parties, which the appellants had agreed to resolve and notify the respondent, it was for the appellants to notify/intimate the respondent that they were in a position to complete the transaction. It is also noticed that it was specifically stated in the plaint that the respondent was all along ready and willing to perform his part of the contract.
The said assertion was not specifically denied either in evidence or in rebuttal. As such, there was adequate evidence available on record to justify a finding by the learned trial court that the respondent was ready and willing to perform his part of the contract.
14. As far as the argument of the learned counsel for the appellants that the respondent failed to prove existence of any dispute between the appellants and 3rd parties, the same is misconceived.
As a matter of fact, it was the appellants, who had stated in the agreement to sell that there was a dispute priding between them and 3rd parties, which will be resolved by them through arbitrators whereafter they would inform the respondents. No such information/intimation was given to the respondent. In any event, the respondent was not required to prove existence of any dispute between the appellants and 3rd parties, which was a fact incorporated in the agreement on the basis of information provided by the appellants themselves. As such, placing the onus on the respondent to prove such dispute would neither be just nor logical.
15. As far as the question of framing of issues is concerned, we have already found that the appellants had admitted the agreement to sell. In the presence of such admission, the issues framed by the learned trial court were correctly framed. 4 of the issues arose out of 4 preliminary objections raised by the appellants in their written statement and one related to time being essence of the contract; the onus to prove which was placed on the parties. It is also interesting to note that the appellants did not, at any stage, raise any objection or moved any application for framing of additional issue. We have specifically asked the learned counsel for the appellant whether any objection was taken in this regard. He has candidly conceded that no objection was even raised or application moved with regard to framing of additional issues.
16. The learned counsel for the appellants has laid great emphasis on contradictions in the evidence of different witnesses produced by the respondent to point out that there was contradiction between their statements regarding the place, time and venue of preparation of the agreement to sell. However, in view of the fact that the agreement to sell stood admitted, any discrepancies in statements of witnesses, which were recorded 2-1/2 years after execution of the agreement to sell are not of much help to the appellants under the facts and circumstances of the present case. Even otherwise, the appellants sold two other parcels of land in the same vicinity through two registered sale deeds. The fact that there was a dispute regarding the land which is the subject-matter of the agreement to sell adequately explains why a sale deed was not executed regarding the said land. We do not see how the said facts help the case of the appellants.
17. From a perusal of the record, we also notice that both parties had ample opportunity to adduce evidence in support of their respective pleas. It is not the case of the appellants that they were in any manner prevented from producing evidence, which could have helped their case. It is settled law that non-framing of issues where both parties had opportunities to adduce evidence is not material and does not constitute a ground for reversing the decree. Reference in this regard may also be made to "Muhammad and 9 others v. Hasham Ali" (PLD 2003 SC 271), "Mr. M. Akram and Raja v. Muhammad Ishaqe" (2004 SCMR 1130), "Eada Khan v. Mst. Ghanwar and others" (2004 SCMR 1524), "Laloo and another v. Ghulaman" (2000 SCMR 1058), "Malik Safdar Ali Khan v. Public at Large" (2004 SCMR 1219) and "Fazal M. Bhatti another v. Mst. Saeeda Akhtar and others" (1993 SCMR 2018).
18. As far as the question of limitation is concerned, the learned counsel for the appellants has not pressed this issue. In any event, we find that under the facts and circumstances of the case, the suit was governed by Article 113 of the First Schedule to Limitation Act, 1908, which prescribes a period of three years for filing a suit for specific performance of a contract. Three years period is to be calculated from the date fixed for performance or, if no such date is fixed when the plaintiff has notice that performance is refused. The agreement to sell was admittedly executed on 25-10-2005.
Even if, the time was to be calculated from the date of execution of agreement to sell, the suit was still within time in view of the fact that it was filed on 19-4-2008. Consequently, the suit was correctly found to be within time. Reference in this regard may be made to "Inam Naqshband v.
Haji Sheikh Ijaz Ahmed" (PLD 1995 SC 314) and "Shabbir Hussain Shah v. Fazal Din and 4 others"
(2008 MLD 30).
19. The learned counsel for the appellants has emphasized the fact that the specific performance is a discretionary relief and a court is not bound to decree a suit for specific performance even if the agreement to sell is established. While the said proposition of law is well settled, it has also been held that the discretion vesting in the court is not to be exercised arbitrarily. Such discretion is to be exercised on the principles laid down by the superior courts. The provisions of section 22 of the Specific Relief Act are also unambiguous and clear to the effect that the discretion of the Court is not arbitrary but sound and reasonable and guided by the judicial principles. Reference in this regard may usefully be made to "Syed Arif Shah v. Abdul Hakeem Qureshi" (PLD 1991 SC 905), in which it has been held as follows:- "... ... ... The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful. However, the discretion of the Court is not arbitrary but sound and reasonable and is to be guided by judicial principles which are amenable to correction by a Court of appeal. It may further be noticed that the above section gives two illustrations which are not exhaustive to demonstrate in which cases the Court may decline to exercise discretion of granting specific perforthance of a contract, namely, (i) where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiffs part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would not involve such hardship on the plaintiff. It may also be pointed out that the above section provides that the Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance."
20. The learned counsel for the appellant has also referred to "Mst. Gulshan Hamid v. Kb. Abdul Rehman and others" (2010 SCMR 334) in support of his contentions. We have gone through the judgment cited by the learned counsel and find that it is clearly distinguishable insofar as it relates to an illiterate lady, the plaintiff did not appear in the witness box and there was a penalty prescribed in the agreement to sell. The facts and circumstances of the present case are different and distinguishable and the principles of law laid down in the aforesaid judgment of the honourable Supreme Court of Pakistan are not attracted to the facts and circumstances of this case. We are, therefore, of the view that the learned trial court was, under the facts and circumstances of the case and on the basis of evidence before it was quite justified in exercising its discretion in favour of the respondent. The learned counsel for the appellants has not been able to convince us that the exercise of discretion by the learned trial court was either arbitrary or unreasonable.
21. The upshot of the above discussion is that:--
(i) the agreement to sell stood admitted;
(ii) the receipt of earnest money was not denied;
(iii) the existence of a dispute between the appellants and 3rd parties which was to be resolved through arbitration within six months constituted part of the agreement to sell;
(iv) the appellants never informed the respondent either that the said dispute had been resolved or that the agreement to sell would stand cancelled and the earnest money forfeited in case the respondent did not fulfil their part of the contract;
(v) a positive assertion made in the plaint as well as in the evidence of the respondents to the effect that the respondent was ready and willing to perform his part of the contract was not rebutted or denied;
(vi) the suit was filed well within the period of limitation provided in the Limitation Act; and
(vii) the appellants never objected to the existing issues or framing of additional issues and in any event failed to convince us that their rights had been prejudiced on account of non-framing of certain issues.
22. We also find that the learned trial court was well within its powers and exercised its discretion in a sound and reasonable manner duly guided by the judicial principles. Such exercise of discretion, in the facts and circumstances of this case, requires no correction by this Court in exercise of its appellate jurisdiction.
23. For the aforesaid reasons, we do not find any merit in this appeal, which is accordingly dismissed with costs.