' MUHAMMAD KHALID MEHMOOD KHAN. J.-- The respondent filed a suit for specific performance.
Injunction and damages against appellants asserting that appellants being, the owners, of Property No,12-A, Block E 2 Gulberg-III Lahore (hereinafter referred to as "suit property") through appellant .No,1 entered into negotiation of sale of front portion of suit property measuring 3-kanal, 8-marla 215 sq.Ft.; after some negotiation the sale price was agreed as Rs,101,00,000 per kanal with the agreement. That front portion of the suit property will be got sub-divided by the appellants from Lahore Development Authority, the sale-deed was agreed to be executed within 6 months after approval of sub-division of the property; an amount of Rs,100,000 (commission of the property dealer per kanal) was agreed which was included in the sale price and, as such, total consideration agreed between the parties was Rs,3,44,17,777, earnest money was agreed as Rs,1,31,00,000; a draft agreement on the above said terms was prepared; when the time for execution of formal written agreement to sell came, the appellant No,1 started dilly dallying and showed his hesitation to mention the actual sale consideration and earnest money, the appellants came with the proposal that terms and conditions originally agreed will remain the same and will be binding upon the parties but formal agreement will be written and executed showing the consideration as Rs,8.4 million and earnest money payable as Rs,2.1 million; the earnest money of Rs,2.1 million will be acknowledged through written agreement, whereas Rs,11.00 million will be received in cash and the balance consideration will be payable as per original agreed oral agreement. In these circumstances, agreement to sell dated 13-7-2000 was executed between the parties.
' Rs,2.1 million was received through Bank and remaining amount of Rs,11.00 million was paid in the shape of US$ 200,000 converted at the rate of Rs,55 per dollar; the balance price was agreed to be paid after sub-division of plot. The appellants failed to take immediate steps in furtherance of agreement; they delayed in filing of application for sub-division of property, they submitted application in the month of September 2001 to LDA. The proposed sub-division was amended thrice due to different technical objections of LDA and ultimately it was approved on 29-5-2001 but the area was reduced from 3-kanal, 8-marla 215 sq. Ft. To 3-kanal, 5-marla 31-sq.Ft. After that, appellants changed their mind and submitted an application to LDA for cancellation of subdivision of the property; on coming to this, the respondents filed an application on 10-7-2001 with the LDA explaining the facts and about the sale agreement; LDA ultimately refused to withdraw the subdivision. The appellants on 23-6-2001 got issued a notice through their counsel claiming that they rescinded the contract as the respondent has failed to perform his part of agreement and tried to defraud him. The appellant No,1 also managed a legal notice from her daughter to him for revocation of general power of attorney in his favour. The parties agreed for mediation through Nayyar Ali Dada, a renowned architect and Sheikh Muhammad Ayub, Manager Finance Lahore Grammar School but said mediation also failed due to dishonest intention of appellants. As appellants have failed to execute the agreement, respondent has suffered loss of Rs,570,12,648 detailed in para 11 of the plaint and as such decree for specific performance of agreement is prayed and in alternative decree for recovery of Rs,570,12,648 was asked against the appellants
2. The appellant resisted the suit, raised preliminary objections and on facts the appellants came with the stance that sale of portion of the property was negotiated with the husband of respondent against consideration of Rs,101,00,000 per kanal but amount was payable in US$ at the rate of Rs,55 per dollar. A total consideration was agreed as Rs,344,17,777 payable in US$. It is stated that an agreement was to be drafted in this regard showing earnest money of Rs,131,00,000 but no such agreement was ever executed nor an amount of Rs,131,00,000 was ever paid to appellant No,1 and as such no agreement of sale ever took place. It is alleged that it is the respondent who was not having funds, the US dollar appreciated from Rs,55 to Rs,66, the husband of respondent with the mala fide intention fraudulently succeeded to convince the appellant No,1 to execute an agreement of sale showing less price. It is pleaded that appellant No,1 being old and ailing person executed an agreement showing total consideration as Rs,8.4 million and earnest money as Rs,2.1 million, allegation of undue influence was also levelled against the respondent. It is further stated that neither agreement was acted upon nor it ever came into existence; however, receipt of an amount of Rs,2.1 million was admitted. It is also pleaded that sub-division proceedings were initiated fraudulent by the husband of respondent. It was finally asserted that agreement stood frustrated on account of non-compliance of material terms i,e, payment of Rs,11.00 million in US$ and was rightly revoked through a notice dated 23-6-2001. The damages claimed by respondent was also denied and finally stated that no agreement oral or written subsists between the parties and as such no decree can be passed on the basis of fraudulent agreement.
3. Learned trial court out of the divergent pleadings of the parties framed the following issues:- "ISSUES:
(1) Whether the suit is maintainable or not? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the parties entered into an agreement to sell of the property mentioned in Para-1 of the plaint at the sale price as calculated @ Rs,1,00,00,000 per kanal of the area of the sub-divided plot by the LDA ?OPP
(4) Whether a draft agreement to sell with the terms mentioned in issue No,3 was drafted on the instructions of the parties to the suit? OPP
(5) Whether the terms relating to the sale price and earnest money agreed upon by the parties were altered at the insistence of Defendants acting through defendant No,1, so as reduce the sale price to Rs,84,00,000 as stipulated in written agreement dated 13-7-2000? OPP
(6) Whether acting upon the original agreement to sell mentioned in issue No,3, defendant No,1 received earnest money amounting to Rs,1,31,000 partly through the written agreement dated 13- 7-2000 to the extent of Rs,21,00,000 through bank transfer and partly in cash amount to Rs, 1,10,00,000 in the presence of witnesses and what is balance sale price of disputed plot according to the area determined in the approved subdivision plan? OPP
(7) Whether the part of earnest money payable in cash an amounting to Rs,1,10,00,000 was received by defendant No,1 after being converted into US$ 200,000 @ Rs, 55 per dollar at defendants' request? OPP
(8) Whether in view of the admission of defendant No,1 in his written statement as to the settlement of amount of sale price as well as of the earnest money, the defendant is entitled to deny the existence of original agreement to sell mentioned in Issue No,3? OPD
(9) Whether after initiating subdivision of the disputed plot before the Lahore Development Authority by submission of the proposed subdivision plot by defendant No,1 the latter is entitled to deny the subdivision of the disputed plot as modified and finally approved by the LDA? OPD
(10) Whether the defendants have failed to perform their part of agreement to sell mentioned in Issue No,3? OPP
(11) Whether the plaintiff is entitled to decree for specific performance of the agreement to sell mentioned in Issues Nos.3 and 10? OPP
(12) Whether the plaintiff is entitled to alternate relief of damages amounting to Rs,57,012,648.50 as claimed in paras-11 and 12 of the plaint? OPP
(13) Relief."
4. Both the parties adduced their respective evidence. Learned trial court ultimately after hearing the parties decreed the suit vide judgment and decree dated 16-6-2005, subject to deposit of Rs,197,94,576 within 30 days and dismissed the claim of damages. Hence the present appeal.
5. Learned counsel for appellant submits that respondent's husband was not authorized to enter into alleged sale agreement being unauthorized person; he submits that respondent is seeking performance of oral agreement and as such reliable, cogent and strong evidence is required for proving the existence of oral agreement which is lacking in the present case. Learned counsel objects the alleged agreement to sell being in violation of section 21 of the Specific Relief Act, 1877.
He finally adds that for the sake of argument, if it is admitted that oral agreement exists between the parties then consideration will be payable according to prevailing market rate. Learned counsel submits that payment of US$ 200,000 has not been proved; the respondent may recover her Rs,2.1 million by filing a suit. He submits that there are material contradictions in the statements of witnesses. Lastly adds that if the court is of the opinion that an enforceable agreement subsists between the parties, respondent be directed to pay the market price. He has relied on Malik Amir Muhammad Khan through L.Rs, and others v. Muzatrar Jan alias Muzaffar Khanum and others (2008 SCMR 705), Abdul Majid v. Ghulam Hussain (2008 CLC 268), Jumma Khan v. Subay Khan (2006 YLR 2161), Mushtaq Ahmed v. Muhammad Younas (2003 YLR 580), Mst.Rashida Abdul Rehman v. Zahoor Hussain and 5 others (2007 CLC 1372), Mrs. Shabeena Farhat v. Highway Housing Project and 2 others (2006 CLC 430), Salma Mehmood through her duly constituted attorney v. M & N Builders through Chief Executive and another (1999 YLR 673), Muhammad AU Riaz v. Mst.Nasim Nazir Ahmed Sultan and another (2008 SCMR 26) and Kamal Din v. Muhammad Sharif (2006 YLR 1200).
6. Learned counsel for respondent submits, that sale transaction between the parties stands proved; the appellants have failed to prove any undue influence; they have not filed any suit for cancellation of sale agreement which according to them was entered into between the parties.
Learned counsel submits that agreement has been proved and partially performed. He submits that bona fide and truth of respondent is established from the fact that they have disclosed the actual price of property and for this truth the respondent has to pay more money. Learned counsel submits that respondent is not challenging the authority of her husband to enter into agreement to sell with the appellant; hence the appellants have no right to challenge the authority of respondent's husband. He supports the impugned judgment and decree and relies on Mst. Wazir Begum v. Muhammad Nazir and 4 others (1999 SCMR 1299), Mst.Bhaghan v. Muhammad Latif and another PLD 1981 Lah. 146 , Muhammad Husain Khan and others v. Mustafa Husain Khan and others (AIR (33) 1946 Allahabad 85), Tulsiram Khirohand Parwar v. Chunnilal Panchamsao Parwar and others (AIR 1938 Nagpur 391), Abdullah alias Dullah v. Amjad Ali Shah (2003 SCMR 894), Mst. Umatul Mobeen v. Muhammad Aziz (2010 YLR 1216), Messrs Jamal Jute Baling and Co., DACCA v. Messrs M.
Sarkies and Sons, DACCA (PLD 1971 SC 784), Hafiz Tassaduq Hussain v. Lal ,Khatoon and others (PLD 2011 SC 296), Hote Khan and 2 others v. Mst.Khanzadi and 2 others (1987 MLD 694), Mian Sajidur Rahman v. Messrs Granulars (Pvt.) Ltd. Through Manager Commercial. Lahore (2003 CLC 80), K.A.H.
Ghori v. Khan Zafar Masood and another (PLD 1988 Karachi 460), Abdul Jabbar and others v.
Muhammad Jabbar and others (2002 SCMR 1173), Muhammad Yaqoob through legal heirs v.
Feroze Khan and others (2003 SCMR 41),' Ghulam Rasool through legal heirs v. Noor Begum and 9 others (2006 YLR 1440), Abdul Latif alias Muhammad Latif alias Babu v. Dil Mir and others (2010 SCMR 1087) and Tajammal Hussain Khan and 3 others v. Allah Ditta and another (2003 MLD 14).
' Learned counsel submits that unsigned agreement between the parties is martially implemented and as such the respondent has successfully proved the existence of unsigned written agreement.
The appellants have tailed to cross-examine the material portion of examination-in-chief of P.Ws.
He adds that the principal is bound to the acts of the attorney during the-. Validity of attorney. He however admits that the small variation in the statements of witnesses is natural and it cannot be used against respondent.
7. We have heard the argument of the parties at length and perused the record carefully.
8. The ownership of suit property qua appellants is not in dispute. It is also an_ admitted fact between the parties that at the relevant time, appellant No,1 Hayat Ahmad Khan was the duly constituted attorney of all the owners of suit property with the power to sell their respective shares.
9. Although respondent No,5 revoked the power of attorney in favour of Hayat Ahmad Khan but the sail revocation is subsequent to agreement to sell in dispute and as such respondent No,1 being the principal is responsible to the acts of her attorney.
10. The appellant No,1(ii), 1(iii) filed separate written statements and taken the stance that defendant No,1 is their father, he may be negotiated for the sale of his share and denied the execution of any agreement on their behalf. The appellant No,1(iv) has also filed separate written statement whereby she also denied the execution of any agreement to the extent of her share and pleaded the same grounds which were taken by the appellants No,1(ii) and 1(iii).
11. Hayat Ahmad Khan himself and on behalf of his principal who happen to be his daughters admits that he negotiated the sale of suit property with respondent No,2/husband of respondent No,1 at the rate of Rs,101,00,000 per kanal payable in US$ at the rate of Rs,55 per dollar; the total sale price was agreed as Rs,344,17,777; the agreement to this effect was to be drafted showing the earnest money is Rs,13.00 million but no such agreement was ever executed nor Rs,13.00 million was ever paid. Hence, no enforceable agreement came into existence. The respondent husband however succeeded to get an agreement signed by misrepresentation and undue influence from an old and ailing person showing the sale price as Rs,8.4 million and earnest money as Rs,2.1 million. The appellant Hayat Ahmad Khan admitted the receipt of Rs,2.1 million in his account. The application to LDA for sub-division of property was denied and claimed that the same has been filed by the respondent husband fraudulently without his consent. The agreement of Rs,8.4 million was revoked on 23-6-2001, the mediation of Nayar Ali Dada and Sh. Muhammad Yousaf was also denied. The claim of damages was not recognized.
12. From the pleadings of parties it is established that there was a bargain of sale between the parties. The dispute is, the appellants are claiming that sale price was agreed at the rate of Rs,101,00,000 per kanal payable in US$ and earnest money was agreed of Rs,13.00 million but respondent husband succeeded to get an agreement signed fraudulently by practising undue influence and misrepresenting the facts, receipt of Rs,2.1 million is 'not disputed. The respondents accept the price of suit property as Rs,101,00,000 per kanal but their claim is that Rs,100,000 per kanal was payable to commission agent and the commission is included in the total consideration.
The respondents' claim is that consideration was originally payable in Pak Rupees but on the asking of appellant No,1, the bargain was redesigned and US$ came into picture when he proposed execution of an agreement showing the less consideration for avoiding payment of income tax and on his proposal the original agreement was agreed to be written in two separate agreements; one showing the consideration as Rs,8.4 million and earnest money Rs,2.1 million and the other agreement showing the entire consideration as per original agreement i,e, Rs,344,17,777 and earnest money of Rs,13.00 million, out of Rs,13.00 million, Rs,2.1 million was agreed to be paid in Pak Rupees and Rs,11.00 million in the shape of US$.
13. The respondents asserted that they have paid an amount of Rs,13.1 million in the following manner "Rs,2.1 million through cash by transfer to appellant account and Rs,11.00 million in the shape of US$ 200,000". The appellant after receipt of the said amounts only signed agreement mentioning the amount of Rs,8.4 million and refused to sign the original agreement on the ground that he has to take advice from his lawyer and after that he will sign the same but subsequently he backed out and dispute was referred to mediation but the said mediation also failed.
14. As the respondents are claiming the change of terms of original agreement between the parties and as such they have to prove their assertions but in this case, the appellants introduced a defence that agreement between the parties was oral and no written agreement was ever agreed, nor it was settled that two agreements will be written or signed by the parties in the presence of admission of bargain, the onus to prove shifted on the appellants for proving their defence. The stance of appellants is that respondent husband succeeded to get an agreement signed by misrepresentation and by practising undue influence; he was an old and ailing person hence the appellants have to prove that agreement Exh.P-2 is an outcome of misrepresentation and undue influence and agreement Exh.P-1 is alien to bargain.
15. Before filing the written statement, the appellants got issued a notice through their counsel for rescinding the agreement Exh.P-2, on 23rd of Jun, 2001 vide Exh.P/61, the suit was filed on 7-12-2001 and written statement was filed on 2-5-2002, meaning thereby the facts stated in written statement were in the knowledge of the appellants when they allegedly got rescinded. Exh.P/61 is not denied by both the parties. The author of the said notice is Asma Jehangir, Advocate who appeared as P.W.2 and affirmed the contents thereof. Perusal of said notice shows that not a single word has been mentioned 'in the said notice about the oral agreement or payment of consideration in the shape of US$, as advanced by the appellants in their written statement. The contents of said notice are reproduced here for better appreciation of stance taken by the appellants in their written statement: "Dear Madam, ' Please take notice that under instructions from my client Mr. Hayat Ahmed Khan son of Abdul Rahim r/o 12/A/E-2 Gulberg Lahore, to serve you as follows: ' That vice contract dared 13-7-2000 you entered into an agreement to sell Property No,12/A/E-2 Gulberg III, Lahore in consideration of sale amount of Rs,84 lakh measuring 3K-8M-215 Sq.Fi.
' That the advance amount of Rs,21 lakh was only paid by cheque to my client and the remaining amount was to be paid at the time of the execution and attestation of the sale-deed.
' That as per clause No,3 of the agreement at page No,4 of the agreement my client was bound for the demarcation process from LDA Which he initiated. But unfortunately you along with your husband with mala fide intentions got demarcation from the department wrongly in an illegal manner, and for the correction of the same proceedings have been initiated before the department.
' That this shows the mala fide intentions and unfairness on your part and thus my client has decided to cancel this agreement.
' That in view of the above one of the legal heirs/co-sharer has revoked the power of attorney granted to my client and hence he is no longer lawfully authorized to sell the above said property.
' Now take notice that I hereby rescind and cancel the agreement because of your evil machinations and negative attitude. Now my client is free and at liberty from this agreement and is not bound to execute the sale-deed.
' Under the circumstances you are hereby intimated that the agreement dated 13-7-2000 is hereby rescinded and is cancelled and my client is not bound to perform the agreement due to your negative attitude and lack of authorization."
16. This admitted document establishes the fact that on 13-7-2001 the appellants entered into an agreement to sell of suit property against consideration of Rs,8.4 million. The total measurement of land subject-matter of sale is shown as 3-kanal 8-marla 215-sq.Ft. The receipt of Rs,2.1 million is admitted but through cheque. It is also specifically mentioned that remaining amount was payable at the time of execution and attestation of sale-deed. It is also admitted that appellant as per clause 3 of the agreement was only bound for the demarcation process from LDA which he initiated but the respondent and her husband with mala fide intention got demarcation from LDA wrongly in an illegal manner, this alleged illegal act of respondent and her husband is termed as mala fide and unfairness which is specifically again reproduced as under:- "This shows the mala fide intentions' and unfairness on your part and thus my client has decided to cancel the agreement. "
' And the reason ' for cancellation/revocation of agreement dated 13-7-2000 Exh.P-2 is finally shown as under:-- "Now take notice that I hereby rescind and cancel the agreement because of your evil machinations and negative attitude. Now .My client is free and at liberty from this agreement and is not bound to execute the sale-deed."
17. This document is a core document, which will decide the fate of case.
18. In the said document, the only agreement admitted by the appellant is Exh.P-2 which shows the consideration as Rs,8.4 million, this is the agreement which according to appellants was not performed and due to non-performance on the part of respondent the same was cancelled. The only mala fide intention or the act of respondent is shown the demarcation of plot/property in violation of agreement. No allegation of undue influence or misrepresentation has been levelled against the respondent or her husband in execution of Ex.P-2, the main defence of appellants in their written statement even the advance age and ailing health of appellant was not pleaded. The appellants defence is automatically stand negated and fallen to earth from the contents of above admitted document, and as such story narrated by the appellants in their written statement as well as in the oral statements of witnesses loses its value and credibility.
19. Now a question arose, if this was the case, why the respondents have asserted that actual transaction was as per Exh.P-1 in spite of the facts that they have to pay more, many in case decree is passed. This very act of respondent is an evidence of their truth and genuineness of the transaction, the appellant No,1 is the father and the other appellants are his daughters. The daughters have appointed their father as their general attorney. One of the daughters has withdrawn her power of attorney when she got issued a notice to his father Exh.P-62 dated 29-6-2001 even before the institution of suit. In Exh.P-62 the appellant No,5 has informed her general attorney through registered letter dated 6-6-2000 that he entered on 13-7-2000 with one Samina Moazzam for the sale of property and that she came to know that her attorney is selling her share at the same rate which is not acceptable to her, she verbally directed him to refrain from selling her share but he is adamant to proceed further.
The most important averment mentioned in this notice is the reason for cancellation of general attorney which is as under:-- "I am these unfavourable circumstances, you were told by my client verbally that she has lost confidence in you and you have failed to honour your commitment so power of attorney may be treated as withdrawn and cancelled to her extent."
20. The appellant No,5 when filed her written statement, claimed that original agreement is oral and is the result of misrepresentation, fraud and collusiveness. Her stance taken in the written statement is as under:-- "The plaintiff has concealed true material facts from this Hon'ble Court, the factual position is that the answering defendant who is co-sharer and co-owner of the-property is never ever executed the agreement in favour of plaintiff or anybody else to the extent of her share in any manner whatsoever.
' That the defendant No,I who is the father of the answering defendant may be negotiated with the plaintiff husband for the sale of his share but the remaining para is being false and incorrect; hence strongly denied."
21. The contents of notice dated 29-6-2001 from appellant No,5 to appellant No,1 specifically admit that Hayat Ahmad Khan her attorney, has executed an agreement to sell with the respondent but she claimed that sale price agreed is less than the market value. These facts are not denied by appellants and are sufficient to prove that appellants planned to deny the sale transaction which was originally agreed between the appellant No,1 and respondent and notice was an attempt to usurp the amount of US$ 200,000 received by Hayat Ahmad Khan for himself and on behalf of his principals.
22. The cancellation of power of attorney by respondent No,5 is planned document only to create a defence against the expected legal action of respondent when dispute arose between the parties.
The appellant No,5 in her legal notice as well as in her written statement has not Leveled any allegation about misrepresentation and undue influence allegedly exerted on her father while entering into sale transaction.
23. Now in the above admitted circumstances it has to be seen whether the respondents have succeeded to , prove payment of US$ 200,000 or not? Exh P-1 is that document which was not signed by appellant No,1 but almost the facts mentioned in Exh.P-1 are the same which are admitted by appellant No,1 in his written statement with a slight change Exh.P-1 is witnessed by Sheikh Sibt-eHassan and Javed Iqbal Butt as marginal witnesses. Likewise Exh.P-2 is also witnessed by these two witnesses which prima facie proves the existence of sale transaction.
24. Sibt-e-Hassan appeared as P.W.2; he deposed that he is a property dealer by profession; he informed the respondents about the availability of suit property for sale; the negotiations about sale and purchase of suit property started on 12-4-2004 in the presence of Rana Muhammad Azim, Moazzam Ali, Haji Hanif and myself at the residence of Hayat Ahmad Khan. A meeting was arranged finally and on 17-4-2000 the price of land was agreed as Rs,10.00 million per kanal; terms of sale were also agreed; earnest money was agreed to be paid in the ratio of 35% or 40% of the total consideration which was payable in Pak Rupees. On 13-7-2000 Exh.P-1 and Exh.P-2 were written which bear his signatures as marginal witness. Hayat Ahmad Khan signed only one agreement which was prepared as per D.C.Rate; the other was not signed by Hayat Ahmad Khan who informed that he will sign it after consulting his counsel as it involves the payment of income tax; the scribe of document is Haji Muhammad Nazir stamp vendor. Haji Moazzam Ali handed over US$ 200,000 containing 20 packets to Hayat Ahmad Khan in his office before signing the agreement; Javed Butt also signed the document as marginal witness; at that time respondent's husband, he, Rana Azim, Javed Iqbal Butt and Hayat Ahmad Khan were present; after payment of amount, all went to Standard Chartered Bank, Usman Block, Awami Complex, account of Hayat Ahmad Khan was opened and Moazzam Ali transferred Rs,2.1 million in his account; he deposed that transaction was not completed as Hayat Ahmad Khan raised other demands; he himself has to arrange the sub-division from LDA; LDA demanded penalty, he refused to pay and said, respondent should pay and to get the property sub-divided; balance amount was payable in Pak currency within months after sub-division. Nayyar Ali Dada and Muhammad Ayub remain functional to resolve the dispute. I used to appear before them. Nayar Ali Dada decided that costs of sub-division should be paid by Moazzam Ali and payment of 175,000 dollar will be admitted and balance amount will be payable after sub-division in Pak Rupees. The said witness was cross- examined at length but not a single question was asked to the said witness about his signature; rather appellants counsel asked an interested question about the receipt of US$ and the witness replied as under:- {{URDU TEXT}}
25. The appellant defence is that not a single penny was paid to him in addition to Rs,2.1 million; then what was the need to ask about the quantum of payment of US$ specially when it was asked that Samina Moazzam admitted that less US$ were paid. The witness replied "it is incorrect", from this question and its reply at least one fact established that US$ were received by Hayat Ahmad Khan may be less than US$ 200,000.
26. Javed Iqbal, the other marginal witness appeared as P.W.3; he deposed that he is the marginal witness of Exh.P-1 and Exh.P-2; in his opinion, differences between the parties was due to sub- division of the property; plaintiff paid US$ 200,000 in the house of Hayat Ahmad Khan on 13-7-2000 and Rs,2.1 million was paid through transfer of amount to Hayat Ahmad Khan's account at Standard Chartered Bank from Samina Moazzam's account; at the time of payment of US$ 200,000 he, Moazzam Ali, Sibt-e-Hassan, Moazzam Zakar and Haji Nazir were present; Nayyar Ali Dada said the dispute about the less payment US$ 50,000 to be settled by sharing equally. In cross- examination, he deposed that he purchased the stamp papers Exh.P-1 and Exh.P-2 on the instructions of Moazzam. The scribe of stamp papers is Nazir Ahmed who completed the same on the instructions of Hayat Ahmad Khan. He denied the suggestion that on the instruction of Moazzam Ali, Exh.P-1 and Exh.P-2 were written. Hayat Ahmad Khan received US$ 200,000 in his house and received Rs,2.1 million in bank; Rs,2.1 million transferred from Samina Moazzam's account to the account of Hayat Ahmad Khan. He also referred the mediation of Nayar Ali Dada.
27. Azim Zakar also appeared as P.W.4 he is also property dealer; he specifically deposed that Hayat Ahmad Khan received US$ 200,000 containing 20-packets of 10,000 dollar each. The denomination of dollar is 100 of each. Hayat Ahmad Khan after counting the same put it in briefcase and after that he went to Standard Chartered, Garden Town and Moazzam Ali transferred 2.1 million in Hayat Ahmad Khan's account. He signed the agreement showing the consideration of Rs,8.4 million but refused to sign the other agreement on the ground that there is issue of payment of wealth tax and he will sign it after two days; he has informed that on 15-7-2000 they should come at 5'0 clock and on the said date we went to him, Hayat Ahmad Khan informed that his lawyer has given time 6'O clock and we should come at 8'0 clock. At 8'0 clock when we went to him Hayat Ahmad Khan's house, his servant told that Hayat Ahmad Khan ranged him up and given a massage for us that we should go to our house and he will himself contact us up to 12'0 clock; Hayat Ahmad Khan has not contacted them. On 16-7-2000 they came to know that Hayat Ahmad Khan proceeded to England and America, he will return in September, 2000. He advised me to negotiate with Moazzam Ali about the payment of penalties imposed by the LDA. Hayat Ahmad Khan himself nominated the name of Nayar Ali Dada. Haji Moazzam Ali accepted that; he, Sibt-e- Hassan and Moazzam Ali went there and after 3 or 4 meetings, Hayat Ahmad Khan raised a new issue informing that he has not received US$ 200,000 but received US$ 150,000. At last in February, 2001 Nayar Ali Dada given the decision that transaction will be in Pak Rupees at the rate of Rs,10.01 million per kanal and payment of US$ will be treated as 150.000 US$; sub-division of plot will be arranged promptly and after three months sale-deed will be executed but Hayat Ahmad Khan slipped from the said meeting. He was cross-examined at length but no material facts could be unearthed.
28. Scribe appeared and deposed that he scribed the document Exh.P-1 and Exh.P-2 on the asking of Hayat Ahmad Khan. Hayat Ahmad Khan provided him all particulars and shown him all title documents. He admits his signature, Sibt-eHassan signature who was the marginal witness of Hayat Ahmad Khan and Javed Iqbal signature on agreement. He deposed that he has signed the document as witness. He specifically deposed that in his presence, Hayat Ahmad Khan received US$ 200,000 and Rs,2.1 million was transferred through bank.
29. Muhammad Ayub, one of the mediators appeared as P.W.7. The husband of respondent appeared as P.W.4 and narrated same facts. Nayar Ali Dada was not produced, his name was not included in the list of witnesses, the respondents filed an application before the civil court for allowing him to summon and produce, the appellants. Resisted said application and the application was dismissed, The said witness was material witness fdr proving the fact of mediation, the appellants were denying the fact of mediation and if the appellants never referred the matter to mediation, they should not oppose the production of said witness; the appellants opposition creates a strong inference against them.
30. Hayat Ahmad Khan appeared as DW.1, he deposed that he entered into agreement with Moazzam Ali in May/June, 2002, agreement was oral; it was settled between the parties that he will receive consideration in dollars. Exchange rate of dollar was at that time Rs,45 and certain paisas.
The documents were prepared for Rs,10.01 million per kanal. The period for execution of sale-deed was three months. The respondent brought a different agreement showing the amount' of consideration as Rs,8.4 million, on my asking the respondent informed that it is as per D.C.Rate then he came to know they are doing it for saving the tax. Then they took him at Standard Chartered Bank, he was not maintaining his account with the said bank, his new account was opened and Rs,2.1 million was deposited in his account. He signed the receipt of Rs,2.1 million and also certain documents showing the consideration as Rs,8.4 million. He deposed that he has not received any amount except Rs,2.1 million. He has not received even single dollar from the respondent. He continued to demand the payment of consideration in dollars. He was not aware how much amount Moazzam Ali deposited with the LDA. He is 83 years old. He received site plan from LDA when he was going to America, he has not signed that. He is suffering from heart and kidney disease. He has not referred the dispute for mediation. The dollar was appreciated to Rs,66 per dollar. The respondent ,committed fraud with him. They washed his brain and pressurized him. He remained under treatment in America. For 3 years. In cross-examination, he admits that his education is B.Sc. He has 4 daughters who are all educated. Three are residing in Lahore and one is residing in America. His memory is not up to the mark, I used to pay tax on my income. He is fond of Music and used to proceed abroad in connection with musical parties. He used to travel alone abroad; nowaday he also used to travel in Lahore alone. He used to go abroad once a year. He used to go abroad from Airport to home alone by taxi. He used to go abroad in summer vacations.
My daughter is working with Asma Jahangir, Advocate, he orally informed Asma Jahangir that no money was given to him; hence there is no agreement. Written-statement was prepared on his 'instructions. Exh.P-61 issued by my lawyer. He attend LDA 3 or 4 times on the asking of Haji Moazzam Ali. The agreement which was orally agreed was for Rs,101,00,000 per kanal. Exh.P-2 bears his signature; he signed it after reading its contents. When he signed Exh.P-2, amount of Rs,101,00,000 was written in Exh.P-1. As the amount was not paid to him so he refused to sign the agreement showing the price of Rs,101,00,000; when he signed Exh.P-2, no one was present. When he signed the agreement, only Moazzam Ali was present. He refused the receipt of US$ 200,000; however, he admits that he has foreign currency account; he is maintaining dollar account as well as sterling account. He is aware of Nayar Ali Dada. Moazzam Ali brought him to Nayar Ali Dada.
When he asked to sign the document, I refused to sign claiming that it is fake document.
31. The statement of DW-1 proves that Exh.P-1 was in existence at the time of execution of Exh.P-2, he admits that he refused to sign it as amount was paid -to him, but it is an admitted fact that on the same time he is executing Exh.P-1 if the respondents were not paying as per Exh.P-1 why he executed Exh.P-2, admittedly these facts were in his knowledge when he got issued Exh.P-61 from his counsel, the author of said document appeared as DW-3 and deposed that his client informed her with all facts, she is appellants counsel in other cases and has client and counsel relations with the appellants, these facts show the appellant intentionally has not disclosed these facts only to usurp the amount of US$ 200,000. DW-2 Gull Rukh, respondent, appeared herself. She deposed that agreement for sale of property was entered into with the respondent at the rate of Rs,101,00,000 per kanal in US$. Agreement was also written in which amount of consideration was written as Rs,8.4 million out of which Rs,2.1 million was received as earnest money. This agreement was in violation of the oral agreement. US$ was to be paid as per original agreement. Terms are settled orally and agreement was also written on these terms. As American dollars were not given and as such that agreement was not signed. As the dollars were not paid, so they rescinded the agreement.. The statement of DW-2 is against her pleadings, she in her notice Exh.P-62 states that her father had agreed to sell his share but in her statement she is admitting that agreement was entered into parties against consideration of Rs,101,00,000 per kanal, she has not deposed that this price was for the share of appellant No,l.
32. DW-3 Asma Jilani, Advocate appeared and confirmed the contents of notice issued by her on behalf of Hayat Ahmad Khan.
33. From the perusal of statements of witnesses of both the parties it is established that two marginal witnesses specifically mentioned that amount of US$ 200,000 were paid before them.
DW-1 and DW-2 both admit that on the basis of oral agreement, an agreement was written showing the amount of Rs,101,00,000 per kanal but the said agreement was not signed as US$ were not paid. From the deposition of respondents witnesses it is established that agreement Exhs.P-1 and P-2 were written simultaneously and both the parties agreed to save the income tax/wealth tax; both the parties were greedy; they both tried to save the income. Subsequently the differences arose between them for payment of penalties and costs of LDA and as such transaction could not be completed.
34. Appellant No,5 appeared as DW-2 and appellant No,1 appeared as DW-1; both have admitted the agreement Exh.P-1 and they explained that they have not signed it as US$ was not given. So the question of oral agreement as pressed by appellants Nos.1 and 5 is not borne out from the record.
It is proven fact that originally both parties agreed for sale and purchase of suit property and price was agreed to be paid in Pak Rupees but subsequently both parties to avoid the payment of tax agreed to pay and receive the substantial amount in US$, the US$ appreciated and due to rise in conversion rate, the dispute erupted, the appellants signed Exh.P-2 and took time for signing Exh.D- 1 after consulting his legal advisor, in two three days he probably failed to see his tax advisor and after that he went abroad and US$ continued to appreciate, the respondent refused to bear the loss of difference of US$ appreciation and then the appellants backed out from the agreement. The collusion of appellant No,5 and appellant No,1 is proved on record and as such the appellants have failed to establish on record any oral agreement. The appellants claim that the transaction was the outcome of undue influence is not proved. The appellants till date have not filed any suit for cancellation of agreement. Interestingly the appellants have not deposed a single word, they are ready to return Rs,2.1 million which they themselves admitted received from the respondents and as such no equitable relief could be granted to a party who himself is not acting equitably.
35. It is an established principle of law that the principal is responsible to the acts which were done by the attorney during the currency of agreement of agencies. Admittedly agency agreement between the appellant No,5 and appellant No,1 was intact when agreement Exh.P-2 was executed.
The plea of undue influence could not be accepted on mere allegation specifically when claimant failed to prove that the respondent was in dominating position in this case rather the respondent was in compromising position as they had paid the amount but the possession remain with the appellants and as such the plea of undue influence is just a plea and has not been proved. The argument of learned counsel for the appellants that for proof of oral agreement reliable, cogent and confidence-inspiring evidence is required as true. It is a case of the appellants that there was an oral agreement and as such in the circumstances of the case it was the duty of appellants to prove the existence of any oral agreement. The respondent is claiming that agreement was written but it was not signed by the appellants; the respondents have successfully proved the agreement of sale between the parties, payment of US$ 200.000 and Rs,2.1, million and as such the judgment of learned trial Court does not warrant any interference. The instant appeal, thus, fails and is dismissed, with costs.