IRFAN SAADAT KHAN, J.---This High Court Appeal has been filed against the Judgment and Decree dated 29-3-2010 passed by the learned Single Judge in Suit No,995 of 2004 whereby the said suit, filed by the respondent for specific performance and injunction, was decreed in the following manner:-- "Upshot of the discussion is that the suit of the plaintiff is decreed in terms of prayer clause 1 with the direction to the defendant to specifically perform his obligation under agreement dated 13-4-2004 by renewing the lease of the Suit Property and sell and transfer the same to the plaintiff under the terms of the said agreement. Parties are left to bear their own cost."
2. Briefly stated, the facts of the case are that the respondent/plaintiff, via facsimile, entered into an agreement dated 13-4-2004, with the defendant/appellant to purchase the property bearing residential Plot No,51 of land bearing Sheet No,C.F-1-5, Survey No,19-A/1, Old Survey No,N/1/A/PO-22, admeasuring 1603 sq. Yds. Located at Old. Clifton, Karachi along with the double storey bungalow and other constructions situated upon it (the subject property) for a total sale consideration of Rs,40,000,000. It is stated that the appellant/defendant shown himself to be the sole owner of the subject property which earlier was acquired by him along with Mr. Ali Iqbal Rizvi and Mr. Hasan Iqbal Rizvi, through Sale-Deed dated 19-6-1976, but later on the said two partners released/relinquished their rights in the subject property in favour of the appellant/defendant, by way of Deed of Release dated 7-11-1994. As per the agreement, the respondent/plaintiff paid to the appellant/defendant a sum of Rs,1,000,000, as advance part payment, through cheque No,7473039, dated 19-4-2004, which was duly encashed by him. It is stated that, on the other hand, the appellant/defendant violated the terms mentioned in the said agreement by not renewing the lease of the subject property though he was required to do so. The respondent/plaintiff kept on reminding and requesting the appellant/defendant to fulfil his obligations and ultimately sent letters dated 19-8-2004 and 24-8-2004 in this regard. However, despite such efforts no steps have been taken by the appellant/defendant to complete such obligations and he remained in breach of the said agreement. It is also stated that it was agreed between the respondent/plaintiff and the appellant/defendant, through the said agreement, to draft a sale agreement containing mutually agreed terms and conditions and the sale agreement was to be signed 15 days after the payment of the advance payment and in this connection several drafts have been exchanged between them and finally draft sent by the appellant/defendant's counsel along with a letter dated 14-5- 2004, which was finalized by the respondent/plaintiff counsel and sent back to the appellant/defendant but since then the appellant/defendant has been avoiding its execution. It is further submitted that it seems from the conduct of the appellant/ defendant that he is not willing to complete the sale proceedings of the subject property and he is trying to evade his contractual obligations with mala fide intentions and it is apprehended that the appellant/defendant will create a third party interest on the subject property by putting a false/fictitious tenant thereupon, whereas on the other hand the respondent/plaintiff has so far fulfilled his all contractual obligations and willing to per under the same. The respondent/plaintiff showed his readiness to tender payment of the balance sale consideration provided that the appellant/defendant completes his obligations and satisfies the conditions precedent to the transaction as under the said agreement. Hence, the respondent/plaintiff filed the suit against the appellant/defendant with the following prayers:- 1) Direct the Defendant to specifically perform his obligations as under the said agreement dated April 13, 2004 by renewing the lease of the Subject Property immediately; and selling and transferring the Subject Property to the Plaintiff' under the terms of the said agreement.
2) Permanent Injunction restraining the Defendant from conveying, selling or transferring in any manner, or creating a false/fictitious tenancy or any third party interest/encumbrance in the Subject Properly except in favour of the plaintiff.
3) Cost of Suit; and 4) Any other relief(s) that this Honourable Court may deem fit and proper under the circumstances.
3. In response to the notices issued to the appellant/defendant, written statement was filed by him denying the averments made in the plaint. On the basis of the pleadings of the parties following issues were framed by the learned Single Judge:- 1) Whether the Annexiire - "A" and "A-1" to the plaint are forged and fabricated documents?
2) Whether the defendant agreed to sell the Suit Property to the plaintiff, if so, on what terms and conditions?
3) What should the decree be?
4. Thereafter the parties led their evidence and after hearing them, the learned Single Judge decreed the suit in the above manner. It is against the said decision that the present High Court Appeal has been filed.
5. Mr. Muhammad Masood Khan, learned counsel appeared on behalf of the appellant and submitted that the order passed by the learned Single Judge is illegal and uncalled for as the learned Single Judge has failed to determine the primary and fundamental issue involved iii the case as to whether the parties have entered into a concluded contract or not? As per the learned counsel, the learned Single Judge was not justified in not deciding the main issue and decided the case on the basis of the other issues, which were neither important nor relevant. As per the learned counsel, the learned Single Judge has not only failed to consider the evidences led before him but also has failed to consider the relevant material placed before him. The learned counsel went on to argue that the order passed by the-learned Single Judge is a result of non-reading, misreading and non-appreciation of evidences. The learned counsel submitted that admittedly there was no concluded contract between the parties and when there was no concluded contract between the parties decreeing the suit in favour of the respondent is against the norms of law. He submitted that the learned Single Judge has not decided the case on all the issues framed by him, as according to the learned counsel no decision whatsoever has been given on Issue No,3, which were framed with the consent of the parties vide order dated 25-3-2009, hence, as per the learned counsel this fatal omission has rendered the order non-est in the eyes of law, which is liable to be set aside. He further submitted that various timelines were fixed for concluding the contract but each time the respondent failed to abide by the terms of the contract. He also submitted that as no balance payment was made by the respondent, the appellant was not obliged to fulfil his part of the agreement the learned Single Judge was not justified in observing that it was the appellant who backed out of the agreement rather it was the respondent who did not adhere to the conditions mentioned in the said agreement. The learned counsel further submitted that the conduct of the respondent was contumacious as despite giving ample time to him he failed to abide by the conditions specified in the said agreement, which has totally been ignored by the learned Single Judge.
6. The learned counsel further submitted that no doubt initially token money of Rs,1 million was given by the respondent to the appellant but thereafter he kept on delaying the matter on one pretext or the other and finally filed the suit against him for fulfilling his part of the promise, which in fact was not kept by the respondent and this aspect has totally been ignored by the learned Single Judge. He further submitted that the learned Single Judge has totally ignored to consider the fact that in September, 2003 when a draft agreement of sale was sent to the respondent's counsel the same was not signed by the appellant which fact also proves that there was no concluded agreement between the parties and the suit filed by the respondent against the appellant on the premise that as there was a concluded contract between the parties and the appellant has failed to fulfil his part of promise, is not only mala tide but is also based on incorrect facts. The learned counsel further submitted that when there was no concluded contract between the parties how can the respondent enforce his legal rights upon the appellant, which aspect has not been considered by the learned Single Judge. He submitted that thus there was no occasion for the respondent to get any relief on the basis of specific performance as there was no concluded contract between the parties and it was the respondent who lingered on the matter and ultimately filed the suit with ulterior motives against the appellant. He further submitted that the findings of the learned Single Judge that the appellant was obliged to renew the lease was also not based on proper appreciation of the facts as the appellant never agreed to renew the lease of the subject property at his cost. He, in the end, submitted that the order passed by the learned Single. Judge suffers from, these illegalities and thus his order is liable to be set aside. In support of his above contention the learned counsel has relied upon the following decisions: 1) Abdul Khalid v. Muhammad Asghar Khan and others (PLD 1996 Lahore 367)
2) Suleman Ali v. Maqbool Hussain and others (2000 YLR 1983)
3) Mst. Rasheeda Begum and others v. Muhammad Yousuf and others (2002 SCMR 1089)
4) Ghulam Yasin Butt and others v. Manzoor Hussain and others (2003 UC 352 (sic)
5) Abbas All Shah and others v. Ghulam All and others (2004 SCMR 1342)
6) Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR a. 334) .
7) Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 Supreme Court 241)
8) Qazi Muhammad Saqib Khan v. Ghulam Abbas and others (2003 MLD 131)
9) Muhammad Rafique and others v. Sharaf Din and others (2006 SCMR 340)
10) Custodian of Enemy Property Islamabad v. Hoshang M. Dastur and others (PLD 1977 Karachi 377)
11) Shajar All Hoti v. Usman Subhani (1985 CLC 342)
12) Al-Huda Hotels and Tourism Co. And others v. Paktel Ltd. And others (2002 CLD 218)
13) Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905)
14) Atlas Khan and others v. Muhammad Nawaz Khan and others (2010 SCMR 1217)
15) Bashir Ahmed v. Ahmed All (2007 SCMR 1047)
16) Messrs Karachi Gas Company v. Fancy Foundation (PLD 1984 Karachi 233)
17) Mst. Rashida Abdul Rehman v. Zahoor Hussain and others (2007 CLC 1372)
18) 2010 MLD 123 19) (19). Rafaqat Ali v. Muhammad Farid and others (2007 SCMR 1047)
20) Saeed Naseem Cheema v. Mrs. Rukhsana Khan [2010 MLD 123 (Karachi)] 21) Muhammad Nawaz Khan v. Mir Ahmad and another (1996 MLD 1389)
22) Ali Muhammad v. Muhammad Hayat and others (1982 SCMR 816)
23) Muhammad Hussain Khan v. Said Muhammad Khan and others [PLD 1988 SC (AJ&K) 184] 24) Mst. Hayat Zaib-un-Nisa v. Muhammad Asad Khan (2003 SCMR 1748)
25) Rehmatullah Khan and another v. Ghulam Farid and others (2009 SCMR 371 26) NLR 1994 (sic) 695 27) Hafiz-ul-Haq v. Haji Abdul Mastan (PLD 1994 Peshawar 235)
28) Sardar Ali v. Wazir Khan (2005 SCMR 1583)
29) Federation of Pakistan v. Mrs. Riaz Latif (PLD 199Q SC 90)
30) M. Salim and others v. Lahore Development Authority (1993 MLD 2312)
7. Mr. Arshad Tayyebally initiated his arguments in reply to the arguments of the learned counsel for the appellant and strongly opposed the arguments that there was no concluded contract between parties and the acceptance of Bayana' without entering into sale agreement does not confer a right on the respondent to claim specific performance of the contract when there was no contract. He submitted that he will be basically relying on Exhibits P/4 and P/5 being the fax sent by the present respondent to the present appellant through the office of the Architect Samar Ali Khan on 12-4-2004, highlighting the basis which had been allegedly agreed between the parties and a copy of the fax duly signed by the present appellant and submitted that it was a concluded contract. He further submitted that he made a payment of Rs,1 Million on 19-4-2004 in accordance with the provisions of Exhibit P/4 and since at that time there was an agreement in field therefore the present appellant accepted that Bayana and deposited the same in his bank account and it is still lying with him. The learned Counsel then took us through the written statement and the cross- examination of the present appellant and pointed out glaring discrepancies in these two documents whereby according to him, in one of these documents/depositions he is stating one fact and is stating a completely contrary fact in the other document/deposition. He then took us through the letters where he had been issuing as reminders to the present appellant to conclude the contract and get the lease renewed as he was obliged to do under the concluded contract but except one reply which was received from Mr. Anwar Mansoor Khan, Advocate, that despite trying his best the present appellant has not been able to get the lease renewed and therefore an offer was made. To the present respondent to purchase the property on 'as is where is basis'. The learned counsel then submitted that as far as the point is concerned that the acceptance of Bayana and the conduct of the present appellant reveals that there is an agreement between the parties then even if it is assumed that the fax was returned unsigned and was not returned by the present appellant the Courts have concluded that an agreement has been entered into and it has to be specifically performed. In this connection he relied on a judgment of this Court in the case of QAMARUL HASSAN V. UNITED BANK LIMITED reported in 1990 MLD 276 and also a judgment from the Indian jurisdiction in the case of HINDUSTAN CO-OPERATIVE INSURANCE SOCIETY LTD. V. SHYAM SUNDER AND OTHERS reported in AIR 1952 CALCUTTA 691. The learned counsel then came to the arguments of the learned counsel for the appellant that an issue which was framed i,e, whether there was a concluded contract between the parties has been left unanswered by the learned Single Judge and therefore the case has to be remanded back to the learned Single Judge to adjudicate on this issue and give findings. The learned counsel submitted that this issue is the same as the first two issues which were framed and enough evidence was led before the learned Single Judge and this issue was not framed after the leading of the evidence and therefore on the basis of such evidence this Court has ample and inherent jurisdiction to decide this issue itself as the Courts have always frowned on the cases being remanded back to the original authority. In this connection he relied on the judgment of this Court in the case of Major (Retd.) SYED BAQAR HUSSAIN SHAH v. Mst. RASHIDA BEGUM reported in 1992 MLD 2515 and HABIBULLAH v. AZMATULLAH reported in PLD 2007 Supreme Court 271. On the basis of above arguments the learned counsel submits that the order passed by the learned Single Judge is a well reasoned order and the Appeal is without merits and does not require consideration of the Court so the same may be dismissed.
8. Mr. Masood Khan, learned counsel for the appellant has filed synopsis of his arguments and in rebuttal after conceding that there could be some discrepancies between the various documents but these discrepancies cannot be made the basis for the suit being decreed. He submitted that for not paying the balance sale consideration, the arguments of the learned counsel for respondent is that he was never asked by the appellant to pay the balance sale consideration but he again referred to the so-called agreement which he has not admitted and accepted and submitted that there is no stipulation even in that alleged agreement that balance sale consideration will only be paid when the appellant demands for the payment of the same. He then referred to the cross-examination of Samar Ali Khan the Architect and tried to point out that even Samar Ali Khan has said that the fax which was returned as Exhibit P/5 was not signed. He has, however, been able to show us that Samar Ali Khan has not been able to recognize the documents P/4 and P/5 and the reason given by him was that his office is just being used as post office and such documents may be exchanged through his office without being seen by him. He, therefore, prayed that the order of the learned Single Judge can not be sustained by this Court and therefore this Appeal should be allowed and the order of the learned Single Judge be set aside.
9. We have heard the learned counsel for the parties and have perused the record and the case- laws relied upon.
10. From the pleadings of the parties and from the record the core issues involved in the present High Court Appeal are that "whether the appellant entered into a valid sale agreement with the respondent through letter dated 13-4-2004 or not?" and "whether the said letter could be considered to be a valid sale agreement as per the relevant provisions of the law or not?"
11. It is seen from the record that the appellant offered the said property for sale by way of advertisement in a newspaper. The respondent then contacted the appellant through Mr. Samar Ali Khan, who was his brother in law, and a meeting took place between the parties at the office of Mr. Samar Ali Khan on 9-4-2004. Thereafter a letter dated 12-4-2004, which is available as Exh.P/1 in the evidence file, was sent by the respondent to the appellant. As per the respondent, the appellant signed the said letter and re-faxed the same after agreeing to the terms mentioned in the said letter on 13-4-2004, which is available on record as Exh.P/3. Subsequently the terms mentioned in the said letter were reduced in writing on the respondent's letter head and were faxed to the appellant on the same date i,e, 13-4-2004, which is available as Exh.P/4. This letter was again re- faxed by the appellant to the respondent on the same day after signing the same and accepting all the terms and conditions as mentioned therein, which is available as Exh.P/5. As per the respondent signing and accepting the terms and conditions as mentioned in the said letter amounted to sale agreement. The total sale consideration agreed by the two parties in the said sale agreement was Rs,40.Million and an amount of Rs,1 million was paid by the respondent to the appellant on 19-4-2004 through cheque which was duly encashed by the appellant, which is available in the record as Exh.P/9.
12. The learned Single Judge while deciding the abovementioned issues came to the conclusion that the Exhs. P/4 and P/5 were neither forged nor fabricated documents and the agreement reduced in writing on the letter head on 13-4-2004 duly signed by the appellant constitute a sale agreement showing willingness of the parties to perform the part of their promise, hence, the same is a legal and lawful agreement and the appellant cannot withdraw himself from the said agreement and had to perform his part of the promise as duly agreed by him by signing the said letter and faxing the same to the respondent. The main emphasis of the learned counsel for the appellant is twofold, firstly he attacked that the said letter dated 13-4-2004 was neither signed by him nor faxed to the plaintiff/ present respondent hence, denied the very existence of the said letter dated 13-4-2004. The second limb of the argument of the learned counsel being, even if for the sake of arguments it is admitted, that the said letter was signed and faxed by the appellant even then no adverse inference could he drawn as the said agreement lacks basic ingredients of an agreement of sale, hence, the same could not be considered as a sale agreement in the eyes of law.
13. The decisions relied upon by the learned counsel for the appellant also are mainly on the issue that as the sale agreement lacks attestation by the witnesses, hence, the same could not be .Considered to be a valid sale agreement as per Articles 17 and 79 of the Qanun-e-Shahadat Order.
The case-laws reported as PLD 1996 Lahore 367, 2003 U.C. 352 and PLD 2011 SC 241 have spelled out the law that if the basic requirements are not fulfilled and complied with the said would not be deemed to be a validly constituted document. In the other decisions reported as 2002 SCMR 1089, 2006 SCMR 340, 2004 SCMR 1342, 2003 MLD 131 and 1985 CLC 342 it was held by the Hon'ble Courts that onus to proof a contract lies heavily on the plaintiff. Somewhat similar view has been taken in the case reported as 2000 YLR 1983. The learned counsel for the appellant has vehemently denied the signing of letter dated 13-4-2004 and in this regard relied upon the decision reported as 2010 SCMR 334 that non-signing of an agreement by vendor keeps him immune from a claim by the vendee. He also relied on the judgment reported as PLD 1977 Karachi 377 wherein it was held that whether a party has reached a concluded contract or not is a question of fact. He further relied on a decision reported as 2002 CLD 218 wherein it was held by the Court that a proposal in a contract must be absolute and unqualified. In the decision reported as PLD 1991 SC 905, relied upon by the learned counsel, it was held by the Hon'ble apex Court that the Court while exercising its jurisdiction should not act arbitrarily but its reasons should be sound and guided by judicial principles. He further relied on the judgments reported as 2010 SCMR 1217 and 2007 SCMR 1047 wherein it was held by the Hon'ble apex Court that the Court has to take into consideration the circumstances surrounding the transaction beside whether the equitable relief of specific performance should be granted or not. The learned counsel relied on the judgments reported as PLD 1984 Karachi 233 and 2007 CLC 1372 wherein it was held by the Court that mere absence of a term in agreement regarding rights and liability of seller and purchaser would not make the agreement as invalid and unenforceable. In the decisions of 2010 MLD 123 and 2007 SCMR 1047, referred by the learned counsel, it was held that Court to exercise its jurisdiction judicially and not arbitrarily. The learned counsel also relied on the judgment reported as 2010 MLD 123 wherein it was held that if the balance sale consideration is not deposited in time the earnest money together with matching sum is not to be returned. In the cases of 1996 MLD 1389, 2003 SCMR 1748, 1982 SCMR 816, PLD 1988 SC (AJ&K) 184 and 2009 SCMR 371 it was held that failure on the part of the trial Court to decide the issues would be considered an irregularity in exercise of its jurisdiction. In the decisions reported as NLR 1994 page 695(sic.) and PLD 1994 Peshawar 235 it was held that mere fact that one person paid money to another it would not prove that he did so to advance loan. In the decision reported as 2005 SCMR 1583 it was held that where the plaintiff's witness failed to furnish trustworthy evidence to establish the transaction, the trial Court and the High Court dismissed the case and the Hon'ble Supreme Court declined to interfere in the matter. In the decisions reported as PLD 1990 SC 90 and 1993 MLD 2312 it was held that an appeal is a continuation of suit. Perusal of the above decisions would reveal that either the above judgments are distinguishable from the facts pertaining to the present case or state settled proposition of law to which there could be no two opinions.
14. On the other hand, the learned counsel for the respondent has relied on the decision reported as 1990 MLD 276 wherein it was held that "where a document was not duly proved by the person signing the same, but circumstances proved its execution, reliance could be placed on such a document". In this case it was further held as under:-- "The factum of remittance, at any event, having, even otherwise, been established the burden stood shifted on the defendants to show that the telegraphic message did not in fact come to be received or that it was not a proper message and, for this purpose, it was incumbent on them to produce documentary evidence which could have consisted of registers/files wherein receipts of such messages are recorded, for it can hardly be maintained that such delicate matters are not reflected in any record whatever. Since, the best evidence of such record has not been produced a presumption arises which under Article 129, illustration (g) of the Qanun-e-Shahadat is that if such evidence had been produced it would have gone against the defendants. It cannot be allowed to remain unnoted that the case of the defendants, as regards the receipt of telegraphic messages, has been a shifting one. Sometime they allow it to be said (assertion of plaintiff' No,1 not disputed) that such messages were received by the branch concerned through the Head Office, and sometime it is said that the same are received by the drawee branch direct, the last being the position finally adopted. In any case, no officer of such branch, holding charge at the relevant time, has been examined, against giving rise to the presumption under Article 129 ibid, that if such relevant evidence had been adduced it would have gone against the defendants.
While on this point it may bear mention that the defendants have pleaded that the payments in respect of telegraphic transfers were to be made on the basis of tested Telegrams of T. P.
Messages, duly authenticated, but their solitary witness has tried to improve the case by saying that the same subject to confirmation through letter. Such evidence, being, in negation of pleadings cannot be entertained".
' In the decision reported as AIR 1952 Calcutta 691 it was observed as under:-- "In the case of acceptance, however, if there is an express or implied intimation from the offerer that a particular mode of acceptance will suffice, some overt act must be done or words spoken by the offeree which are evidence of an intention to accept, and which conform to the mode of acceptance indicated by the offerer".
' In the aforesaid decision it was further held as under:--- "If the company had not accepted the proposal, or if its intention was not to accept the proposal, why did it cash the cheque? Why did it appropriate the money? There was no satisfactory answer to these questions, on behalf of the Insurance Company. '
' To us the position seems to be this: the assured sent the proposal form with the cheque, and in effect said to the company: "I am sending herewith my proposal and the first half-yearly premium. The organizer cannot receive the cheque as premium. But you can. If you accept my proposal, cash the cheque".
' In other words the proposer in this case dispensed with express communication of the acceptance and from the nature of the transaction we may somewhat readily infer the offerer 's intention to dispense with the communication. The offerer in this case "asked for an act on the condition of the offer becoming a promise", and that act was done by the company, namely, the cashing of the cheque. We have no doubt, therefore, that the company by cashing the cheque and appropriating the money accepted the proposal. No communication was necessary to be made to the assured to complete the acceptance."
' In the decision reported as 1992 MLD 2515 it was held as under:- "It will be going too far, to say that merely because the Court has given consolidated decision on all the issues, the decision should be treated as illegal, even if; no prejudice is caused to the case of the party. Such a proposition cannot be subscribed to, particularly, in view of the facts of this case, Issues Nos. 3, 4 and 5, being inter-related. Finding in respect of third issue, logically and legally covers findings on the fourth issue. So far as fifth issue is concerned, as will be seen hereafter, has become redundant".
15. In the decision reported as PLD 2007 SC 271 the Hon'ble Supreme Court observed that "remand of case should not be lightly ordered and if evidence on record is sufficient then the Appellate Court should decide the case itself.
16. It is seen from the record that the amount of token money/biyana given to the appellant was duly encashed by him meaning thereby so far as entering into a sale agreement is concerned that aspect of agreement for sale stood established as at no point of time the appellant had denied having received and encashed the said amount which proves that some sort of understanding developed between the parties for the sale of the said property and in respect thereof a sale consideration was duly received by the appellant. The controversy arose after receiving the said advance payment when the respondent approached the appellant for renewal of lease which as per the respondent, according to Point No,9 of the sale agreement, was the responsibility of the appellant. The learned counsel for the-respondent in this regard drew our attention to a number of letters and reminders written to the appellant for the said renewal and stated that no positive reply in this regard was given by the appellant which amply proves that the appellant after entering into a valid contract backed out from the same. The learned counsel also invited our attention to the deposition of P.W.3 Samar Ali Khan who has admitted that an amount of Rs,1 million was paid as earnest money in respect of the subject property which was received by the appellant in his office.
He also admitted that there was a deal entered into between the appellant and the respondent and something exchanged in writing also. He also admitted that some fax letter came to his office, sent by the respondent to the appellant, which were forwarded by him to the appellant but stated that he does not remember that whether the appellant sent any reply or not. He also admitted that he has acted as mailbox between the appellant and the respondent and if any document was sent by the respondent to the appellant at his office the same must have been forwarded by him to the appellant. He also admitted that a meeting took place at the chamber of Mr. Arshad Tayebali Advocate between the appellant and the respondent in which he was also present wherein renewal of lease was also discussed. He also admitted that the respondent suggested to the appellant that if there is any difficulty in renewing the lease the respondent could provide assistance in this regard. He further stated that when a dispute arose between the appellant and the respondent he first went to the respondent to enquire as to what the respondent wants. P.W.3 Samar Ali Khan specifically pointed out that the matter of increasing of sale price was not discussed. He, however, specifically admitted that the appellant agreed in principle to sell the subject property to the respondent. He also admitted that the amount of earnest money of Rs,1 million was given by the respondent to the appellant, which he has retained. He also admitted that a discussion also took place for making an additional. Payment of 25% of the purchase price. He also admitted that the appellant never sent any document in his presence. He also admitted that it was discussed in a meeting that the actual cost of renewal of lease would be first worked out and then it will be decided as to who will bear the same. He also admitted that he was not in the knowledge that any proper or formal agreement of sale was executed between the parties, however, voluntarily said that it may have happened behind his back.
17. The deposition of DW-1, i,e, the appellant, reveals that a meeting took place at Samar Ali Khan's office which was attended by him, Zahid Maker, his wife and Samar Ali Khan. He, however, stated that in the said meeting nothing was discussed with regard to the sale of the property. He admitted that he agreed that he would sell the said property to the respondent which contradicts his own assertion that in the said meeting nothing was discussed about the sale of the property. He also admitted that the sale consideration of the subject property was agreed at Rs,40 million. He also admitted that as a sale consideration the respondent gave him Rs,1 million on 19-4-2004 and the said amount is still with him and the said amount was encashed by him the very next day on which he was given the cheque. He also admitted that the letter dated 12-4-2004 was received by him through fax and the said fax was sent at Samar Ali Khan's office who forwarded the same to him.
He also admitted that letter dated 13-4-2004, produced by him as Exh.D/9, was sent by him to the respondent through Samar Ali Khan's office. He also admitted that he was using Samar Ali Khan's office for exchanging faxes between him and the respondent. He further admitted that he did not trust Samar Ali Khan dealing in the said transaction, however, in the same breath stated that Samar Ali Khan left it to the appellant and the respondent to finalize the sale and in his opinion Samar Ali Khan is an honest man. He also admitted that Exh.P/4 is the letter dated 13-4-2004 written by the respondent in response to his letter dated 13-4-2004, Exh.D-9. He also admitted that Exh.P/5, which is the letter dated 13-4-2004, was not signed by him. He also admitted that he did not send any reply in response to letter dated 13-4-2004 (Exh.P/4) and that letter dated 13-4-2004 (Exh.P/5) went to the respondent without his signature. He also admitted that all the correspondences made between Mansoor Ahmed Khan and Co. And Mr. Arshad Tayebali were with his authorization. He also admitted that he agreed to the terms of the draft sale agreement which he produced as Exh.D/11. However, he denied that it was his responsibility to get the lease deed renewed. He also admitted that though in para-8 of the draft sale agreement the seller was required to renew the lease deed, however, submitted that the same was only a draft' agreement.
He also admitted that a meeting took place to settle the matter at the office of Samar Ali Khan wherein the respondent and Mr. Arshad Tayebali were also present. He further admitted that in the said meeting the respondent insisted that the lease may be got renewed by him which he refused.
He denied signing on Exh.P/5 i,e, letter dated 13-4-2004. He also submitted that no document was sent by him to the respondent regarding cancellation of the deal, he however, stated that he had agreed to sell the subject property but differences arose when he refused to pay the cost of renewal of the lease. He, however, contradicted himself by admitting that the respondent is not entitled to specific performance for the reason that he failed to pay the balance sale consideration. He also admitted that no written request was made by him to execute a proper sale agreement and to pay the balance sale consideration. He stated that though some drafts of the sale agreement were exchanged but there was no proper sale agreement between them. He also admitted that he does not remember that whether there was any agreement between the parties regarding renewal of lease. He also stated that he was not sure when he received Exh.P/11, letter dated 23-6-2004 written by the appellant regarding renewal of lease. He also stated that he does not remember that whether he received Exh.P/12, the letter dated 19-8-2004 regarding renewal of lease. He also admitted that he does not remember whether he received a reminder letter dated 24-8-2004 written by the respondent to him regarding renewal of lease. However, he admitted the Exh.P/14, which is the letter written by Messrs Mansoor Ahmed Khan and Co. To the respondent dated 31-8-2004, mentioning that it was agreed between the parties to purchase the property from the appellant by the respondent "on as is where is basis". He admitted that there was no document to prove that the parties ever reached to any such condition that they had agreed that the property would be sold/purchased 'on as is where is basis'. He also submitted that he did not back out of the commitment on the ground that the price of the property had gone up. In the end, he submitted that it was not correct to suggest that the respondent was ready to purchase the property and complete the sale contract and it was only the appellant who backed out of the said terms.
18. We have minutely considered the decisions relied upon by both the learned counsel and have examined the record and the depositions made by the appellant, respondent and Mr. Samar Ali Khan. There is no denial to the fact that the parties entered into an agreement regarding sale of the property. Some communications were also exchanged between them which shows their willingness in respect of an offer and an acceptance. The willingness on the part of the appellant is evident from the fact that he not only accepted the cheque dated 19-4-2001 but also encashed the same, which proves that so far as the agreement of sale is concerned the appellant had entered into an agreement for sale with the respondent. The acceptance of the offer by the appellant implies an action on the part of the appellant that there was a clear intention of sale on the part of the appellant in this regard. It was admitted by the appellant that he agreed to the terms of the draft sale agreement para. 8(t) of which contains that the seller shall deliver to the purchaser the documents containing 'the renewal of lease'. It is seen from the record that even this sale agreement was acknowledged by the then counsel of the appellant Messrs Mansoor Ahmed Khan and Co. Vide their letter A dated 14-5-2004 through which they have stated that they have received the sale agreement and they proposed certain corrections/amendments and it would be interesting to note that in the said agreement the para-8(t) was with regard to the duty of the seller to hand over the purchaser the documents containing renewal of lease up to the period of December, 2005. Hence, the assertion of the appellant that he never agreed for the payment of renewal of lease appears to be an afterthought and not correct, as per the record. Mr.Samar Ali Khan had also in this regard clearly admitted that in the meeting held between the appellant and the respondent at his office renewal of lease of the property was discussed. He also admitted that the appellant agreed in principle to sell the property to the respondent. We also find a number of contradictions in the deposition of the appellant, which is evident from the record as discussed supra. Hence, so far as entering into sale agreement in respect of the subject property and accepting of biyana is concerned that issue stands established beyond any doubt. After entering into an agreement and accepting the biyana, it was incumbent upon the appellant to culminate the sale by executing the terms of the agreement so that the same may be finally settled. Even the appellant, as is evident from his deposition, never denied to have entered into a sale agreement with the respondent.
19. The learned Single Judge while deciding the case has categorically placed reliance on section 8 of the Contract Act which states about acceptance by performing the conditions or receiving consideration. The learned Single Judge has observed that once an amount has been received and sale consideration has been determined between the parties, by way of offer and acceptance, the appellant was duty bound to perform his part of the promise. We fully agree with the observations made by the learned Single Judge that when the appellant accepted the offer and entered into an agreement the same, which was not a void contract, there was not only an offer and an acceptance between the parties but there was an express and implied intimation from the appellant with regard to a particular mode of transaction and an intention to sell the property at a stipulated sum of money, which remained un-rebutted. Hence, we are of the considered view that the appellant and the respondent entered into a valid agreement of sale and the intention of both the parties, as evident from their actions, clearly proves beyond any doubt the making of an offer/proposal and acceptance of the same. Had there been no intention to sell the subject property the appellant would neither have accepted the cheque nor had encashed the same.
Hence, so far as this question is concerned that whether there was a valid agreement of sale between the parties or not, we would answer the same in affirmative that there was a valid agreement of sale between the parties with regard to the sale of the subject property for a sale consideration of Rs,40 million for which an amount of Rs,1 million was paid by the respondent as earnest money which was accepted and encashed by the appellant.
20. The contention of the learned counsel for the appellant that the agreement, if any, agreed between the parties was not proved also carries no weight in view of the categorical admission by the appellant that he agreed that he would sell the said property to the respondent for a total sale consideration, which was agreed at. Rs,40 million between them, and also specific acceptance that in consideration of sale agreement the respondent gave him a sum of Rs,1 million through cheque dated 19-4-2004. We, therefore, again are of the considered view that when there was a specific admission regarding entering into a sale agreement by the appellant with the respondent and specific admission of the appellant with regard to the foremost issues, the subsequent retraction from the said admitted sale agreement is uncalled for and shows mala fide on the part of the appellant, as he was under the legal obligation to execute the terms admittedly entered between them in order to culminate the sale.
21. It is a trite proposition of law that the terms of an agreement are to be fulfilled by the parties by showing their intentions, which is to be gathered by looking at the circumstances of each case. In the present case it is evident from the record that the parties entered into a valid contract, by way of an agreement.The respondent moved ahead by paying a certain sum, through cheque, as biyana and the appellant also moved ahead by accepting the said earnest money, depositing the said cheque in the bank and getting the same encashed. However, when the matter reached the second phase, i,e, implementation on other parts of the agreement and giving it a final shape, it was the appellant who, for the reasons best known to him, backed out of the said agreement. Thus, apparently the respondent did have a cause of action against the appellant and was justified in filing a suit' for specific performance and injunction against the appellant.
22. The learned counsel for the appellant has raised an objection that the learned Single Judge has not dilated upon all the issues raised before him and thus his order was not in accordance with law. Suffice it to observe that the main controversy in the suit was with regard to whether the appellant and the respondent entered into a sale agreement in respect of the suit property or not, which issue in our opinion had been decided by the learned Single Judge meaning thereby that the core controversy involved in the present case had duly been answered by the learned Single Judge, hence, the assertion of the learned counsel for the appellant that the learned Single Judge had not decided the issues, placed before him, is of little significance in view of the fact that the core controversy in this case had been decided and it has no where been said that logically and legally the main controversy involved in the case had not been adhered to or had not been decided. In the decision given by a Division Bench of this Court in the case of Muhammad Hussain v. Ghulam Nabi and another, reported as 1982 CLC 888, it was observed that "where a learned Judge decided the issues in a consolidated manner, there would be no serious objection to the decision in respect of deciding all the issues together when no prejudice has been caused to any party". In the present case also when the learned Single Judge had decided the main controversy of the case and even if, for arguments sake, it is assumed that all the issues were not decided would not make any difference as the learned Single Judge had disposed of the case upon a preliminary point and decreed the suit accordingly. We, therefore, find no merit in this argument of the learned counsel for the appellant also and reject his contention raised on the ground that the learned Single Judge had not decided the material issues before him.
23. We, therefore, have come to the irresistible conclusion that the respondent was justified in filing a suit for specific pertormance against the appellant and the learned Single Judge was justified in directing the appellant to perform his obligations, as per the agreement dated 13-4-2004, by renewing the lease of subject property and ordering the appellant to sell and transfer the property to the respondent under the terms of the said agreement. We are therefore of the considered view that the order passed by the learned Single Judge is unexceptionable and no interference in this regard is warranted. We, therefore, uphold the judgment and decree passed by the learned Single Judge, impugned in this appeal.
24. The upshot of the above discussion is that this High Court Appeal is hereby dismissed and the judgment and decree passed by the learned Single Judge is hereby affirmed.