' RAJA SAEED AKRAM KHAN, J.---Through supra titled appeal, the validity .Of the judgment and decree passed by the High Court on 13-5-2008, has been challenged, whereby while accepting the appeal, the High Court concluded as:- "In view of the above, accepting the appeal, it is directed that the appellants will deposit the balance/remaining- amount in the Court of District Judge, Mirpur, within a period of two months.
The defendant is directed to execute the sale-deed in favour of the plaintiff failing which the learned District Judge, Mirpur, shall arrange the execution of the sale-deed in favour of the plaintiff in accordance with law. If the amount is.Not deposited within the stipulated period then the suit shall stand dismissed."
2. The gist of the facts culminating into the present appeal is that WAPDA had constructed Bungalow No, 1-C situated in sector C/1, Mirpur, during the course of construction of Mangla Dam.
Thereafter the said bungalow was transferred to Government of Azad Jammu and Kashmir, pro forma respondent. In the year 1969, Ch Maqbool Raza, appellant herein, admittedly a refugee, with the permission of concerned Authorities (pro forma respondents) took over the possession of the said bungalow and started residing over there along with his family. Subsequently, the appellant approached the official respondents with the request to get transferred the bungalow in his name, and the official respondents made their recommendations accordingly in favour of the appellant along with other occupants through various letters, in pursuance of which the Government decided to transfer all the bungalows constructed by the WAPDA to all the occupants in consideration of Rs,10,00,000 each as is evident from the Government letter dated 18-11-1986. After the decision made by the Government, the defendant-appellant entered into an agreement-to-sell with the predecessor-in-interest of the present respondents for transferring the said bungalow in his favour on 8-11-1987 in lieu of Rs,15,00,000, therefore, a sum of Rs,1,50,000 as well as further Rs,25,000 respectively was paid to the defendant-appellant as earnest money and the remaining amount was to be paid at the time of execution of sale-deed subject to obtaining the proprietary rights of the bungalow. The defendant-appellant executed another Iqrarnama fortifying therein the execution agreement-to-sell/ acknowledgement receipts of,part payment thereof. Ch. Muhammad Alam, father of the respondents, herein, instituted a suit for specific performance of the contract/agreement to sell dated 8-11-1987. The suit was rejected under Order VII, Rule 11, C.P.C.
By he trial Court. The order of the trial Court was vacated by the High Court but the order of the High Court was reversed by this Court vide judgment dated 14-12-1992 while agreeing with the judgment and decree of the trial Court. Hence, the first phase of the litigation terminated to this extent. The deceased-plaintiff filed a second suit, praying for permanent injunction against the defendant-appellant and pro forma respondents and sought direction/ declaration for specific performance of the contract/agreement with additional relief for transfer of the disputed bungalow in his favour directly after due process of law. The deceased-plaintiff specifically justified his reasons for initiating the second suit on the similar cause of action mentioned in paragraph 5 of the plaint. During the pendency of subsequent suit, the record was burnt which was reconstructed.
Thereafter, Ch. Muhammad Alam, the plaintiff, passed away. The trial Court, after completing the entire proceedings under law, vide judgment and decree dated 30-6-2007 dismissed the suit to the extent of specific performance and partly accepted the claim to the extent of issuance of decree for making good the earnest money of Rs,1,75,000 along with interest according to the bank rates. On appeals the learned Chief Justice of the High Court set aside the judgment and decree of the trial Court while accepting the appeal vide judgment and decree dated 13-5-2008, against which the instant appeal has been filed:
3. Initially this case was heard by the Bench consisting of Mr. Justice Syed Manzoor Hussain Gillani and Mr. Justice Khawaja Shahad Ahmad (as they then were). A difference of opinion arose between the learned members of the Bench. It is for this reason that this case has been placed before this Bench for hearing and disposal.
4. Sardar Muhammad Azam Khan, the learned counsel for the defendant-appellant, has argued that the judgment and decree of the High Court is against law and facts of the case. He argued that after the rejection of the plaint in the first round of litigation by this Court, on the ground that the plaint did not disclose a cause of action, no new cause of action arose till 13-3-1993, i.e,, the date of the filing of second suit. Since, no cause of action was involved in the second suit, therefore, the trial Court rightly dismissed the suit. He vehemently argued that when agreement-to-sell was executed by Ch. Maqbool Raza, the defendant-appellant, he had no valid title in the said house, therefore, he was not competent to execute the agreement-to-sell or to transfer the house in dispute, therefore, on this ground, the suit merited dismissal but the High Court erroneously held otherwise. The learned counsel lastly submitted that he owns the written arguments submitted by his senior, Raja Muhammad Khurshid Khan, Advocate, and requested that the same may be considered as due to ill health he could not appear before the Court and argue the case.
5. Raja Muhammad Khurshid Khan. Advocate, in his written arguments, submitted that after rejection of the plaint in the first round by the Supreme Court on the ground that the plaint did not disclose a cause of action, no new cause of action arose till 1993 when the second suit was filed in the court of District Judge Mirpur. As no cause of action was available to the plaintiff-respondents, therefore, their second suit was also liable to be rejected and has rightly been dismissed by the District Judge after hearing the parties and considering the evidence on record. In the year 1986 when the agreement-to-sell was executed by the defendant-appellant he had no title in the said property, therefore, the alleged agreement-to-sell/contract clearly denotes that it was a transfer in vacuum as Maqbool Raza, defendant-appellant, had nothing with him except to transfer the possession of the house. A person who has no title in any article or property no deep argument is required to say that he is not competent to alienate a thing which he does not possess. The High Court failed to attend to this very legal and important issue touching the very bases of the suit. The averments listed in the second suit in fact involve improvement of certain phraseology with regard to the prayer made in the first suit. Under the provisions of Qanun-eShahadat Order the respondents are estopped to take any plea derogatory or inconsistent to the first suit. He has referred to some observations made by this Court in previous round of litigation.
' It has been submitted that a close scrutiny of the second suit filed in 1993 would show that the deceased Ch. Muhammad Alam based his claim on the same cause of action which had already been refused to be accepted by the apex Court. Even, if it is presumed that the plaintiffs- respondents had some cause of action, the same could accrue to them after transfer of the property in the name of the appellant, Maqbool Raza in the year 2001 but Haji Muhammad Alam deceased vendee or for that matter the respondents failed to amend their plaint filed in 1993 or institute a fresh suit after 2001. As the Government order in respect of grant of proprietary rights clearly provides that the transfer of ownership of the house is made to all the occupants including Maqbool Raza, his sister, Madina Begum, and brother. Zafar Ahmed. The transfer of house in favour of Maqbool Raza, defendant-appellant, is violative of this order, therefore, it does not create any entitlement in the title of the whole house in favour of Maqbool Raza. Maqbool Raza is owner of 1/3rd portion of the house and not beyond, therefore under the agreement to sell made in the year 1987, even if it is admitted to be executed correctly, the title of the house passes to the plaintiff only to the extent of 1/3rd portion of the house if the agreement so permits. The combined effect of different provisions of Specific Relief Act and the opinion recorded by the Supreme Court in the first round, of litigation clearly reveals that after the findings of the Supreme Court, in the first round all concerned have to accept the verdict of the Supreme Court and it cannot be reversed directly or indirectly by the Courts below in the second round of litigation by interpreting the deed of agreement-to-sell to have created a cause of action falling within the ambit of absolute contract.
The plaintiff, Haji Muhammad Alam, did not state in'his plaint that appellant had undertaken to transfer the house after its transfer, but contrary to it, the second suit contains such an averment, which under the law of estoppel creates a great hurdle in the way of plaintiffs-respondents. The facts which were within the knowledge of Muhammad Alam, deceased, and which he omitted to state in the first suit, cannot be allowed to be narrated in the second suit on the basis of same cause of action. Neither Muhammad Alam, deceased, nor the present respondents could be allowed to have a volte-face to the pleadings earlier made which form the part of the record.
' It has been further submitted that the High Court in the impugned judgment has recorded contradictory findings, therefore, even if the execution of transfer deed is presumed to be correct, the contingency is only with regard to the consideration and the agreement-to-sell cannot be considered to be contingent contract. The learned Judge in the High Court has relied upon the case reported as Muhammad Sama Mondal v. Muhammad Ahmed Sheikh (PLD 1963 Dacca 816).
The referred judgment favours the stand of the appellant as it specifically observes that "a contingent contract is not enforceable till the event on which it depends, has 'accrued" The agreement-tosell would only be enforceable when the transfer of the house was made to Maqbool Raza in the year 2001. While disputing the findings of the High Court recorded at page 13 of the Judgment, it has been pleaded that the contract cannot be construed as a contingent contract. It has been further submitted in written arguments that the issue in respect of contingent contract having not been taken or pleaded before the District Judge, the High Court was not competent to decide this issue. The learned Judge has misunderstood and misinterpreted the law on the subject which needs to be rectified by the Supreme Court.
' It has been contended that the suit was filed after an inordinate delay therefore the respondents under the provisions of Specific Relief Act are not entitled to file a suit after such a delay. It has nowhere specifically been stated in the suit that the appellant should be directed to, obtain the proprietary rights from the concerned functionaries and then transfer the same to the plaintiff. In this view the verdict of the Supreme Court created a bar for the plaintiff-respondents to agitate such an averment in the second suit. Assuming the transfer in favour of Maqbool Raza to be legal, the law is that where one of the co-sharers of the immovable property transfers his share of such property or any interest therein, the transferee acquires only, the interest to the extent of share the transferor has, section 54 of the Transfer of Property Act deals with the transfer property which defines 'sale' in addition to the contract of sale. A contract of sale is defined to mean a contract for the sale of immoveable property when one acquires it. It does not itself create any right in such property. As Maqbool Raza acquired the interest in the property in 2001 and not before, therefore, the second suit was also premature and required to be dismissed. The decree passed by the High Court is not executable in the sense that the house' in question was in possession of three persons and a co-sharer who is not in exclusive possession of a house or property, when it is occupied by other co-sharers, cannot transfer the same. The property has changed hands and the title was transferred twice and especially when the transferees have made immense improvements, the High Court could not grant a decree for specific performance. To support the arguments a reference has been made to the Transfer of Property Act (Second Edition 2007 by Prof. ,Dr. C.M Hanif) pages 50, 59 and 60 (sections 6 and 7 of the Transfer of Property Act).
' It has been submitted that if a person transfers a property or makes a contract to transfer his name must appear as an owner in the record of rights, otherwise it would be presumed that he had no right in the property intended to be transferred. A case titled Abdullah and another v. Abdul Rashid and others PLD 1997 AJ&K 9 has been relied upon. It is further submitted that section '53(a) of the Transfer of Property Act gives no protection to a person on the basis of a document which is not signed by both the parties. Such a document is void and nonexistent. An agreement which tends to transfer a property must be signed by both the parties. Reliance is placed on Muhammad Amin and others v. Mian Muhammad (PLD 1970 BJ 5) and (PLD 1964 SC 454). Section 55 of the Transfer of Property Act specifically provides that the transfer must be made by the owner and if it is not made by an owner, it will be void, No other mode is allowed. All Mardan and 3 others v. Khalid Mahmud and another (PLD 1973 Pesh. 167) has been referred. Similarly, section 41 of Transfer of Property Act has also been relied upon.
' In the written arguments it has been submitted that the contracts are of two types one is called an absolute contract and the other is called a Contingent contract. Both are different in nature and character. Absolute contract means that both the parties are eligible to enter into a contract and on the basis of this eligibility they are considered competent to enter into a contract. The transfer must be for a consideration and so far title is concerned both the parties must be aware of the eligibility of the transfer. While the contingent contract is, a contract unilateral in nature. Here in this case Ch. Maqbool Raza, the appellant'herein, did not possess the title at the time of the agreement which fact was even known to Muhammad Alam, deceased, plaintiff. Therefore, it can never be considered to be a contract at all. Reliance has been placed on Bhairon Prasad Chaurasiya v. Smt, Tara Devi and another (AIR 1980 All, 36), Nemi Chand and others v. Harak Chand and others (AIR 1965 Raj 132) and sections 20 and 32 of the Contract Act.
' It has been further averred that Order II, Rule 1, C.P.C. Enjoins upon a plaintiff that he should file a suit and frame it so as to cover all grounds for final decision upon the subject suit. This rule makes it imperative, for the plaintiff to ask for all reliefs forming cause of action. So is not done in this case if a person pmits one of the reliefs, he cannot be allowed to re-agitate such a plea in any other suit.
The law on the point under Order II Rule 2, C.P.C. Is very clear and admits no exception or ambiguity.
Rule 3 clearly stipulates that a person entitled to more than one reliefs in respect of the same cause of action, may sue for such reliefs but if he omits except with the permission of the court he shall not afterward be permitted to sue for'any relief so omitted. In the instant case, in the first suit, Muhammad Alam, deceased, failed to mention all the essential facts constituting the right, therefore, the doctrine of estoppel under the provisions of Qanun-e-Shahadat Order and Order II, Rules 2 and 3 of C.P.C. Are fully attracted. Reference may be made to a case reported as Fazal Muhammad v. Muhammad Noor (PLD 1975 Peshawar 17).
' It has been next submitted that judgment of the Supreme Court dated 16-12-1992 is binding on the District Judge and the High Court, therefore, the High Court could not pass the impugned judgment in violation of judgment passed by the Supreme Court in earlier round of litigation. Reliance has been placed on section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, Eid Wali v. The State (1985 PCr.LJ 987), Anwwar v. The Crown (PLD 1955 SC 185), Khalida Begum v.
Muhammad Altaf (1983 CLC 678), Chairman AJK Council v. Abdul Latif 1997 MLD 2926 and Radha Kamal v. Puri Municipality and others (AIR 1954 Orissa 110).
The scope of the suit is to be determined with reference to the averments made in the plaint only and not with reference to the written statement. Reference may be made to Muhammad Siddique v. Bhupendra Narayan Roy Chowdhury and others (PLD 1962 Dacca 643) and Ahmad Yar Khan v.
Haji Khan and another (AIR 1944 Lahore 110).
' It has been lastly submitted that under Order VII, Rule 11, C.P.C., the Court is bound to reject a plaint, if it does not disclose a cause of action. There is only one provision in C.P.C. Which is Order VII, Rule 13 wherein after rejection of a plaint, a fresh suit can be instituted but the provision makes some exceptions. The provision speaks that the rejection of plaint shall not of its own force, preclude the plaintiff from presenting a fresh plaint in respect of same cause of action. The expression "on its own force" is important. It clearly denotes that if the fresh plaint under any other provisions of C.P.C., i.e,, the provision of Order II Rules 2 and 3, is forbidden, no fresh suit shall be permissible despite this provision. Order VII, rule 13, C.P.C., does not apply in the instant case Therefore it could be said with certainty that the second suit filed during the year 1993 cannot proceed being incompetent.
6. On the other hand, Mr. Abdul Majeed Mallick, the learned counsel for the respondents, fully supported the judgment and decree passed by the High Coutt while arguing that the points raised in the memorandum of appeal, concise statement and the written arguments were not raised in the pleadings in defence as the defendant-appellant admitted the execution of agreement and its contents, along with the part payment of the amount agreed between the parties. The objections raised in the written statement and addressed. In the shape of issues framed by the trial Court, were struck off by the trial Court in its judgment. The appellant filed no counter appeal or cross- objections against the striking off of the pleas raised in the written statement and the issues framed thereon. The judgment of the trial Court having become final against the defendant- appellant, such objections cannot be raised afresh before this Court. He has further argued that it was evident from the testimony of the appellant, that the suit property was transferred, in the name of the appellant by the Government by virtue of his being sole occupant. The appellant, on securing the title of the property in his name, further transferred it, through gift-deed, executed on 18-7-2003, in favour of Ejaz Ahmed who, later on, transferred it to Imtiaz Ahmed, his real brother. The transfer was made in violation of the interim injunction already issued by the trial Court. The appellant was found guilty of the offence of contempt of Court and was convicted. The order of conviction is sub judice before the apex Court. The judgment of the Supreme Court recorded on 16- 12-1992, in the first round, could not be applied as res judicata or impose restriction in institution of the present suit. He submitted that the finding of the High Court on the nature of the agreement and failure ' of the defendant-appellant to fulfil his part of the agreement was recorded in perfect legal manner, hence, warranting no interference in the same by this Court. It was further argued that the respondents moved an application in .The trial Court to implead subsequent transferees of the property in dispute. The learned counsel representing the appellant in the High Court agreed that in view of provisions of section 52 of the Transfer of Property Act, it was not necessary to implead the said transferees as party in the case. As the application was not contested, it shall be deemed to have been admitted and the resolution on that account by the High Court could not be challenged. It has been vehemently contended that in presence of admission of execution of the agreement and its terms and conditions, by the defendant-appellant, in his testimony before the trial Court, it was not permissible to go into the merits of the case on any alleged ground in appeal or concise statement of the appellant. It has never been the case of the defendant-appellant that the Government, the last owner of the property, ever raised objection in its transfer, in favour of the defendant-appellant, after the issuance of notification on 15-10-1986. On account of escalation in the prices of the property, the defendant-appellant changed his mind to honour his commitment made in the agreement-to-sell. The conduct of the defendant-appellant was mala tide. The price raised by the Government from rupees ten lac to twenty lac, at the time of the transfer of the land, was raised due to negligence and mala fide behaviour of the defendant-appellant. The learned counsel has further submitted that a right has been accrued to the respondents by allowing decree in their favour, on payment of Rs,30,00 000 instead of Rs,15,00,000, fixed in the agreement.
The respondents have already deposited the amount in the trial Court. He lastly argued. That the judgment and decree passed by the High Court, has been passed in a lawful manner and it suffers from no factual or legal defect, as such, it is liable to be maintained. He has relied upon the cases titled Basappa Budappa Halavalad v. Bhimangowda Shiddangowda (AIR 1928 Born, 65), Bisawan v.
Natha and others (AIR 1925 Oudh 30), Messrs Aman Enterprises, Kotli Loharan, Sialkot v. Messrs Rahim Industries Pakistan Ltd., and another (PLD 1988 Lah. 717), Ch. Muhammad Saleem and others v. Nazir Ahmad and others (1993 MLD 312), Rustam Ali v. Chaudhry Mukhtar Ahmad Anwar (1987 MLD 394), Iqbal Sultan v. Chand Sultan, and others (1990 CLC 366), Iqbal Sultan v. Miss Chand Sultan and others (1990 CLC 366), Sher Muhammad and 2 others v. Muhammad Ali and 11 others (1990 MLD 232) and Muhammad Mubeen v. Messrs Long Life Builders and others (PLD 2006 Kar.
278), Muhammad Sharif v. Muhammad Ilyas and 23 others (1999 SCR 362), Asif Mehmood and 3 others v. Mehtab Ahmed and 4 others (2000 CLC 1355), Muhammad Fazil v. Mst. Rehsam Jan and another (1983 CLC 1165) and Amanat Ali v. Mst. Sardar Bibi and 2 others 2003 MLD 299.
7. Mr. Khalid Rasheed Chaudhry, Advocate, also appeared on behalf of respondents and argued the case at some length. While pressing into service, a vital legal proposition, he submitted that when cases of contract are brought before the Courts for specific performance or damages, the recitals in contract or agreement deed has to be construed strictly and intention of parties is to be gathered from the document itself. The learned counsel further submitted that statements of the parties are brought on record. The legal proposition, or 'for that matter the fiction of law cannot be considered in vacuum. Likewise, when there is a subsisting valid contract, either party cannot engraft interpretation or condition of his own choice for the purpose of avoiding or implementing the legal contract in clear meaning. After- execution of reciprocal contract or agreement, no party can be allowed for breach of contract or refuse to specific performance or rejection of the claim or damages on the basis of escalation in prices. The learned counsel also argued that the rejection of first plaint under Order VII, Rule 11, C.P.C. Does not itself preclude a plaintiff from filing a subsequent suit on the similar cause of action nor does the principle of res judicata apply, specifically when suit or plaint has not been decided on merits and that the Court empowered under law to mould the relief to compensate either party in the interest of justice.
8. We have heard the arguments and perused the record minutely. Before commenting upon the arguments of the learned counsel for the parties in the light of facts, record, law and the precedents, we would like to take up the preliminary objections raised by Mr. Abdul Majeed Mallick, the learned counsel for the plaintiffs-respondents, relating to agitating, challenging, reopening and moreso pressing into service the grounds mentioned by the learned counsel for the appellant to challenge the correctness of the findings of the Court of first instance against the defendant- appellant. According to the learned counsel for the respondents, the learned counsel for the appellant has taken such points in the appeal as well as in the concise statement which were beyond the pleadings in defence in the trial Court as the defendant-appellant, who admitted the execution of agreement and its contents along with part payment for the whole agreed amount settled between the parties. The objections raised by the appellant in the trial Court in his written statement which have been addressed by the Court in the form of issues had been struck off vide its judgment against which no objection or appeal has been filed, hence, the judgment of the trial Court attained finality against the defendant-appellant. These objections cannot be agitated freshly in the Supreme Court. Likewise issue No, 9 framed by the trial Court relating to the cause of action having been decided against the defendant-appellant against which order of the trial Court no-cross-objections or counter appeal was filed by the defendant-appellant, hence the controversy to that extent has become final and this point could not be re-agitated or reopened with main arguments advanced or supplementary grounds of facts and law. The specific codal provision bars the Courts in considering such like grounds and at the same time the appellant stands precluded from raising any objection or finding defect in the judgment of the trial Court.
There is no cavil with the proposition that if either party, in whose favour the decree has been passed, can either file an appeal or cross objections in appeal if he is dissatisfied or feels any grievance, but this provision of law when read in juxtaposition with Order XLI, Rules 22 and 23, C.P.C., it becomes abundantly clear that the plaintiffs-respondents did not file any appeal from any portion of the decree. He cannot only support the decree of the Court on either ground made against him but can also file cross-objections against the decree which he could have taken by filing appeal within the stipulated period of limitation. Rule 23 of Order XLI C.P.C. However, deals with the powers or authority of the appellate Court to pass a decree and make any order according to the requirement of the case. In fact these provisions are beneficial one. Under Rule 23 of Order XLI, C.P.C., the appellate Court is empowered to invoke the provision to do complete justice or prevent the ends of justice from being defeated and to adjust the rights of the parties in accordance with the principles of justice, equity and good conscious. In view of these provisions read with the provisions of the Azad Jammu and Kashmir Supreme Court B Rules, this Court has all powers to reopen and reconsider the proposition adversely decided against a party, who did not file cross- objection or appeal against that part of the order decided by the trial Court. Our view is supported by recent judgments recorded by the Supreme Court of Pakistan reported as Sooba and others v.
Abdul Aziz and others (2008 SCMR 332) in which it has been observed as under:-- "(4) On the other hand, the learned counsel for the respondents, to be fair to him, candidly conceded that in the light of the provisions of Order XLI, Rule 22, C.P,C., both the parties were equally entitled to re-agitate against the findings of the trial Court on all issues.
(5) We have heard the learned counsel for the parties at length and have also perused the relevant record. We find that issues Nos.3 and 5 were regarding estoppel and Talbs. The findings of the trial Court on both issues were against the respondents/pre-emptors. However, the findings of the trial Court on all other issues were in favour of the respondents. Issue No,4 was also of vital importance as to "whether the plaintiffs had got any superior right and pre-emptive right in respect of the suit-land as against the vendee-defendants? OPP". It is clear from the judgment dated 28-1- 1999 passed by the Additional District Judge, Jampur, that the petitioners were precluded from addressing arguments as to the correctness of the finding of the trial Court on other issues including Issue No,4 merely on the ground that they had not filed any cross-objections or cross- appeal in the case. The course adopted by the Additional District Judge was violative of the provisions of Order XLI, Rule 22, C.P.C. And the judgment by a Full Bench of this Court in the case of Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74, authored by one of us (Faqir Muhammad Khokhar, J.). It was held therein that a party in whose favour a decree was passed, was not necessarily required to file an appeal or cross-objection as it could defend the decree on all the available grounds in support of the decree in appeal as provided by Order XLI, Rule 22, C.P.C., even though such grounds had been found against it. In Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and 2 others 1998 SCMR 2306 this Court had taken the view that where a respondent had neither preferred a petition nor filed an appeal, the Court had ample authority and full powers to extend relief to him provided that it was necessary either to do complete justice between the parties or the case otherwise involved invocation of Court's inherent powers. Beneficial provisions of Order XLI of Rule 23, C.P.C: could also be invoked to do complete justice or to prevent the ends of justice from being defeated and to adjust the rights of the parties in accordance with justice, equity and good consciences as laid down in the case of Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597. In our opinion, the judgments of the High Court and the Additional District Judge. Are not sustainable at law."
' Similar view prevailed in the cases titled Province of Punjab through Collector District Rajanpur and 2 others v. Muhammad Akram and others (1998 SCMR 2306) and Abdul Haq and others v.
Shaukat Ali and others (2003 SCMR 74).
8. Out of the issues framed by the trial Court, issue No, 2 was to the effect whether plaintiff is entitled to the decree against defendant? (onus of proof on plaintiff)'. While deciding this issue the trial Court held that the contract entered into by the parties was contingent as on sanction of the Government, the house was transferred to the appellant on higher price as compared to the price entered in the agreement-to-sell, therefore, the contract being not a complete contract, the specific performance could not be ordered. Another fact which prevailed with the trial Court was that the proprietary rights were granted to the defendant in 2001 while the suit was filed in the year 1993. The plaintiff has not impleaded the subsequent purchaser, therefore, this issue was partly decided in favour of the plaintiffs. However, the plaintiffs plea of specific performance was refused.
The plaintiffs were held entitled to the earnest amount with the interest at the bank rates from 8-11- 1987. The learned trial Court did not record findings on issue Nos.3 to 8 as in its estimation, the decision on these issues was not necessary. Issue No 9 was to the effect "whether plaintiff has no cause of action". The trial Court decided the same against the defendant-appellant, herein, by holding that plaintiffs-respondents have a cause of action. Similarly issue No, 10 framed by the trial Court, i.e, "whether the suit is premature as proprietary rights of the Kothee (bungalow) have not yet been acquired by the defendant or his brother and sister" was struck off.
9. On appeal, the learned Judge in the High Court held that the contract between the parties executed on 8-11-1987 was an absolute contract and had become enforceable. The learned Judge observed that as during pendency of the proceedings in the trial Court proprietary rights in the suit property had been notified by the concerned functionaries on 14-6-2001 therefore, the appellant herein, was under legal obligation to execute the sale-deed. The High Court while passing a decree of specific performance, ordered the appellant to execute sale-deed in favour of the respondents for a consideration of 3 million rupees, which is double of the sale price agreed originally, The learned Judge also set aside the findings of the District Judge wherein he had held that in view of section 20 of the Contract Act, the agreement to sell/contract had to be ignored on the ground that the same has been frustrated. While dilating upon the points of legal nature the High Court held that mere fact that Government sold the house to the appellant, herein, at a higher price and long after the execution of the agreement deed, cannot frustrate the agreement and a decree for specific performance can be granted under law. It was also observed that execution of the agreement to sell having been admitted by the appellant, specific performance of the same could not be refused by him. The learned Judge in the High Court repelled the argument of the defendant-appellant that as the marginal witnesses of iqrarnama have not been produced, the agreement to sell cannot be said" to have been proved under law. As far the subsequent transferees are concerned, the learned Judge held that on the basis of doctrine of lis pendens no valid right could generate for the appellant to plead that he has transferred the land to some others. In this respect the High Court discussed the provision of section 52 of the Transfer Property Act and two cases recorded by this Court. The learned Judge in the High Court also attended to the objections of the appellant herein that at the time of execution of agreement to sell, the vendor was not an owner of the disputed house, therefore, could not execute the agreement-to-sell and held that as the vendor was admittedly occupying the house and the Government had decided to transfer the same to him through letter dated 18-11-1986, therefore, the vendor, Maqbool Raza, had a transferable interest in the house at the time of execution of agreement-to-sell. While relying on the case reported as Amanullah v. Sher Afzal 2003 MLD 1142, the High Court observed that the vendor, after executing an agreement-to-sell, cannot avoid specific performance of the contract.
10. To see in depth the findings of the High Court, we have to advert to some facts of the case necessary to be recorded here for adjudication on merits of the case. For this purpose it would be advantageous to reproduce the letter of Deputy Commissioner, Mirpur, letter of Section Officer.
Works/Communication to ascertain its legality and rights and privileges of the contesting parties and the powers of the court to execute such an agreement. The agreement-to-sell read as under:- - ' Agreement-to-sell: {{URDU TEXT}} ' A plain reading of the above documents reveals that the appellants is a refugee of 1965 and had not been allotted and land or house and that he having rendered some national services was recommended for allotment/sale of the house and was conveyed on 18-11-1986 about some decision of the Azad Government of the State of Jammu and Kashmir that if the persons in possession pay one million rupees within three months, the building shall be transferred to them.
Similarly the basic agreement of 19-11-1987 clearly reveals that it is {{URDU TEXT}} The document remained in possession of the respondents and nothing has been found in record and pleadings by the respondents otherwise. The document is only an agreement-to-sell and the recitals in the agreement-to-sell also confirm that at the relevant time the appellant was not owner of the house and in case, of failure of the appellant, the plaintiff, Ch. Muhammad Aalam, was authorised to initiate legal proceedings against the appellant to get a decree passed in his favour. The other document (placed on record at page 34 of the trial Court's file) is also an iqrarnama for having received another amount of Rs,25,000 which clearly reads as under:-- ' The combined effect of the above referred documents, therefore, is that it was a case of agreement-to-sell and it could not be termed as complete contract of sale as has been held by the High Court. The expression in English rendering means "promise or agreement-to-sell". Under the settled principles of interpretation of documents we cannot dilate anymore or collect ourselves the authority to interpret the same in any other manner. A deed of contract has to be construed strictly and literally without deviating or implying anything which was not stated by the parties and language of the document. Nothing can be implied in a contract, which is inconsistent with its expressed terms. The words of a deed are to be taken in their literal plain and ordinary meaning and if they lead to inconsistency with other expressions used in the document or absurdity, then such plain and ordinary meanings can be modified to avoid absurdity and inconsistency to save the document. In this respect reliance is placed on the case reported as House Building Finance Corporation v. Shehenshah Humayun Cooperative House Building Society and others (1992 SCMR 19) wherein it has been observed as under:-- "9. While interpreting the terms of contract the Court has to first ascertain the intention of the parties. In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC 219 it was held:- ' One general rule that ' emerges, and it is an ancient rule, from discussions on the subject is that in the interpretation of written instruments, whether they are Constitutional charters or ordinary statutes or other documents the first object of the Court is to discover the intention of the author and that such intention is to be gathered from the words used in the statute or document.
10. The contract has to be construed strictly and literally without deviating or implying anything which is not supported by the intention of the parties and the language of the document. It is a sultry principle of consideration of document that nothing can be implied, in a contract which is inconsistent with its expressed terms. In West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi PLD 1973 SC 222, it was held that a stipulation not expressed in a written contract should not be implied merely because the Court thinks that it would be a reasonable thing to imply it. Such an implication can be made only on consideration of the terms of the contract in a reasonable manner and if the Court is satisfied that it should necessarily have been intended by the parties when the contract was made. In documents of contracts where terms and conditions have been exhaustively specified dealing with all possible future and foreseeable contingencies but if certain fundamental contingencies have been left out which necessarily in the context, facts and circumstances of the case should have been incorporated and can be spelt out then the Court may imply such conditions. Reference can be made to Paragadas Mathuredes v. Jeewan Lal (1928) Ltd. PLD 1948 PC 162.
11. The main purpose of construction of terms of a written agreement is to find out the intention of the parties to the agreement."
' It was further observed in this case at page 29 as under:-- "In construing the deeds, the words are to be taken in their literal, plain and ordinary meaning.
Where the plain and ordinary meaning may lead to inconsistency' with other expressions used in the document or absurdity then such plain and ordinary meaning can be modified.
' To avoid absurdity and inconsistency because the law favours to save a deed, if possible. In order to avoid inconsistency and absurdity resulting from plain and ordinary construction the Courts are always anxious to adopt a' reasonable construction by which the intention of the parties can be spelt out. In Perrin v. Morgan (1943) AC 399 at page 421 Lord Romer while construing a will observed:-- ' Rules of construction should be regarded as a dictionary by which all parties including the Court are bound, but the Court should not have recourse to it to construe a word or ' phrase until it has ascertained from the language of the whole will read in the light of the circumstances whether or not the testator has indicated his intention of using the word or phrase otherwise than in its dictionary meaning.'
' Thus, it is clear that the intention of the parties has to be collected from the document as a whole and every part of the deed should be examined and read together."
We have, therefore, come to the conclusion that {{URDU TEXT}} is nothing but an agreement or agreement-to-sell. We need not, therefore, enter into the exercise in respect of agreement-to-sell contract or absolute contract. It, however, needs mention here that the word "contract", as has been defined by the Contract Act itself, is an agreement enforceable at law.
11. Now we advert to the next point in the case i.e, the contention of the learned counsel for the appellant that the Supreme Court has previously interpreted the document in first suit by the respondents to be "the agreement-to-sell" stipulates that transfer of bungalow would be made.
After completion of papers (),J.Z.z..6y.4y-.). ;A). {{URDU TEXT}} It is neither explained in the plaint nor contents of the contract show as to which papers were to be completed and what was the required nature of completion. The expression "completion of papers" occurring in, the plaint refers to the factum of obtaining proprietary rights from the Government, but it has not been prayed in the plaint that the appellant may be directed to take steps to obtain proprietary rights from the Government and then to transfer the house to the respondents. The question which needs resolution is as to whether the averments made in the plaint entitle the plaintiff-respondents to the relief prayed for by them as indicated above. So far as relief sought against the defendant- appellant is concerned, it has not been specifically alleged in the plaint that he promised in the contract to first obtain proprietary rights in his favour from the Collector and then to transfer the house to the plaintiff-respondents. There is only an ambiguous assertion that the defendant- appellant was to transfer the proprietary rights after "completion of papers". Even if the said vague averment made in the plaint is held to mean that the appellant made such promise, no relief has been sought in terms that he should be directed to obtain the rights of ownership in his favour from the Collector or the Government and then transfer the same to the plaintiff-respondents. The case of the plaintiff-respondents, as has been put forth 'during the course of arguments, is not pleaded and consequently it cannot be said that the plaint discloses a cause .Of action. A case not set up in pleadings, cannot be made basis for any relief. Mere assertion of facts which establishes a moral case in favour of a plaintiff, cannot be regarded to disclose a cause of action unless the right is enforceable by law. While taking into consideration this analysis the view formed by the High Court in the judgment under appeal is not correct. The second suit was not competent under law as this Court had analysed almost all the points in the first suit, therefore, the second suit was not maintainable.
12. It would be appropriate to look into some facts and findings from the previous round of litigation.
In the first plaint while deciding issue Nos.1 to 3, it was held by the trial Court as under:-- " From the perusal of record it transpires that the house in dispute is in the ownership of WAPDA authority and an agreement-to-sell between the parties has taken place. The proprietary rights were yet to be given to the persons who were in possession of the house of the WAPDA Colony at Mirpur and defendant No,1 is also having possession of the house in WAPDA Colony namely Bungalow No,1, Sector C/1, Mirpur city. It is on the record that agreement-to-sell with regard to the house in question between the parties was made on 8-11-1987 for a consideration of Rs,15,00,000.
This has been admitted by defendant No,1 in his written statement but the ownership still rests with the Government. Defendant has not obtained proprietary rights of the house in question, therefore, the defendant No,1 cannot transfer the house in dispute at the moment. Thus the suit in hand is premature one and it cannot be entertained at this stage as the plaintiffs have got no cause of action to file the present suit. Even if the proprietary rights have been granted to defendant No,1, the plaintiff can sue defendant No,1 for damages due to breach of contract but the like 'situation has not been created at the moment. In these circumstances I think at this stage the suit in hand cannot be entertained and it is hereby dismissed because the plaintiff has got no, cause of action to file present suit."
' When the matter came before the High Court, a Division Bench of the High Court observed that the controversy could be resolved only on the basis of material' brought on the record and the facts mentioned in the plaint, particularly, ,paragraphs 3 and 4 of the plaint and the appellant should have been allowed to lead evidence in support of his claim. The High Court held as under:- "In view of the above observation the learned trial Court fell in error in dismissing the suit of the plaintiff-appellant. We, therefore, accept the appeal and set aside the order under appeal dated 29-11-1989. Consequently, the case shall go back to the District Judge Mirpur for disposal in accordance with law in the light of observations recorded in this order."
' On appeal, as has already been stated, the Supreme Court set aside the finding of the High Court while holding that the plaint did not disclose any cause of action. It was further held that the document on the basis of which the plaint has been filed was an ambiguous document. This Court set aside the judgment of the High Court on the points of merit holding therein that the suit has rightly been rejected by the trial Court and maintained the findings of the trial Court.
13. In the light of above analysis, we have come to conclusion that in the first round of litigation the suit was dismissed as being premature and having disclosed no cause of action. As has been mentioned earlier, admittedly, no provision of law enumerated in C.P.C. Can bar a second suit if the previous one is not decided on merits. In the present case this Court has clearly declared the document/agreement-to-sell to be vague and even has gone to the extent that the deed does not itself postulate that the appellant shall transfer the house to the respondents, herein, after getting the' proprietary rights.. The Courts below have tried to deviate from giving full effect to the judgment of the Supreme. Court recorded in the previous round of litigation and although not necessary, we also hold that once the Supreme Court has interpreted a document to suffer from disclosing the cause of action or when on the basis of document no cause of action is available with the plaintiff, subsequently it cannot be held that the plaintiff has a cause of action on that ground.
14. Now coming to the contention of Mr. Abdul Majeed Mallick, the learned counsel, that rejection of plaint under Order VII, Rule 11 does not in itself preclude the plaintiffs to file second suit on the same cause of action, we have no cavil with the proposition. Rule 13 of Order VII, C.P.C., clearly postulates that the rejection of the plaint would not in itself preclude a plaintiff to file a second suit on the same cause of action. The combined effect of Rules 11 and 13 of Order VII, C.P.C. Is that the second suit shall be competent on the same cause of action. This does not, in any manner, affect the rights of the defendant to raise any objection to the maintainability of the suit on facts or law. If the second suit is found to be not maintainable under law it has to be dismissed after hearing the parties. This concludes the controversy to the extent of Order VII Rule 11 C.P.C. So far as the application of Order II Rules 1, 2 and 3 is concerned admittedly, the plaintiffs are barred from taking any inconsistent or additional stand or claiming a relief in the second suit, which was available to them in the first round of litigation. This proposition needs no. Further deliberations as the High Court has not recorded the decree on those grounds and it has only ordered the specific performance of a contract.
15. Now we advert to the point whether mischief of section 11, C.P.C., is attracted in the present case.
Section 11 of C.P.C, postulates that it prohibits a Court from trying any suit or issue in which the matter directly and substantially in issue in G a former suit between the same parties or between the parties under whom they or any of them' claims and litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, it has been heard and finally decided by some competent Court. The logic behind constructive res judicata is that if the parties have had the opportunity of asserting all grounds in support of their claim or defence in a former suit and have not done so,, they shall be deemed- to have raised such grounds in former suit and it shall be further deemed that these grounds have been heard and decided as if these matters had been actually in issue. Such party, as such, shall be precluded from raising these grounds in a subsequent suit. Such matters will', by virtue of such legal fiction, be construed to be res judicata. Reliance can be placed on a case reported as titled Nazir Ahmad and others v. Abdullah and others (1997 SCMR 281) wherein it has authoritatively been held as under:-- "7. A perusal of above-quoted portion of section 11 of C.P.C. Indicates that it prohibits a Court from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such competent Court. Admittedly, the parties to the present litigation are the parties who are claiming through Nawab. It is also an admitted position that the present suit land is a part of the land left behind by said Nawab on his death. In our view,. Section 11 of the C.P.C.
Does not make any distinction between a judgment in rem or a judgment in personam as was canvassed by the learned counsel for the appellants. In this view of the matter, the finding of the Courts below against appellants Nos.1 to 7 as to their entitlement is in consonance with law and does not call for any interference by this Court."
' Similarly in the case titled Amanul Mulk v. Mian Ghafoor-ur-Rehman and others (1997 SCMR 1796), it was held as under:-- "6. We have not been impressed by this submission of the learned counsel. The learned Judge in the High Court has held that the suit, out of which, this petition has arisen, was hit, by the principle of constructive res judicata. This doctrine is embodied in Explanation IV to section 11, C.P.C. And is an essential constituent of doctrine of res judicata. It is because of principle of res judicata that the doctrine of res judicata is rendered fully effective. The aim of the doctrine is to compel both the parties to the suit to raise before the Court in support of their contentions all the grounds of attack and defence available to them. By force of this doctrine, the parties, have to bring their whole case to the Court and cannot reserve for the purpose of a second suit grounds available to them in support of their case. The rationale behind the constructive res judicata is that if the parties have had in opportunity of asserting a ground in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such grounds in the former suit and it shall be further deemed that these grounds had been heard and decided as if these matters had been actually in issue. As such, such parties shall be precluded from raising these grounds in a' subsequent suit. Such matters will by virtue of this legal fiction be construed to be res judicata."
16. Sometimes second suit is filed on the facts elaborated and highlighted with a view to create a fresh cause of action, but the same could not be made a ground for application of any ground creating a new cause of action and in that case the principle of res judicata is applicable. In this respect a case reported as Nooruddin and 11 others v. Abdul Waheed and another (1999 MLD 2844) is helpful in which it has been observed as under:- ...... The drafting of the amended plaint gives an expression that only the facts have been elaborated and highlighted with a view to create a. Fresh cause of action which in fact, reiteration of the earlier averments finally heard and decided by this Court. No fresh or distinct cause of action seems to have accrued to the plaintiffs after the decision of the previous suit. Even otherwise, no relief has been sought with regard to the alleged construction of shops on the open piece of land whereas the relief with regard to raising construction of a wall and the right of ingress and egress was agitated earlier and discarded by this Court on appraisal of evidence. This relief is, therefore, hit by the principle of res judicata which bars the plaintiffs from raising same issue of fact or seeking a remedy which was earlier sought but not granted ' In the present case although this Court has previously opined about validity of the contract-deed to make a cause of action for the vendee, the detailed survey of the case law shows that rejection of the first suit under Order VII Rule 11 read with section 11, C P.C., is somewhat similar to autretois acquit in criminal jurisprudence, namely, that the previous trial should have ended in a final verdict on merits of the real controversy between the parties. We hold accordingly.
17. After holding that the second suit was not competent, we now consider the arguments in respect of title of the appellant when on 8-11-1987 he had entered into agreement-to- sell/iqrarnama. It correct that a transferor can transfer only what he, at the relevant time, possesses. The plaintiff must have legal chara9ter or right to the property at the time of filing of suit and its coming into existence at some future time is not sufficient. It, however reveals and as is abundantly clear from the record that the appellant has admitted ' the execution of document and even in y his statement accepted the actual position, therefore, the appellant in his defence could not take an exception to the validity of agreement by submitting that he had nq title in the property, which he, at least, promised with the predecessor of respondents. It is legal and moral duty of the vendor to fulfil the promise. We have no hesitation not to refer here the evidence brought on file and the written statement filed by the appellant wherein he has stated that he had entered into an agreement-to-sell with the predecessor of the respondents to transfer this house after completion of papers, whatever they were. It, however, reveals that he categorically stated that he demanded consideration amount from Ch. Muhammad Aalam but he refused to perform his part of contract. In fact each party levelled allegations against each other for breach of contract on the grounds averred in the pleadings and the evidence brought on record. The Courts below have not considered evidence of the parties in its true perspective. The trial Court has discussed the whole evidence and as far as the High Court is concerned, the learned Judge has only mentioned that he is not convinced by the evidence of the appellant.
In cases of specific performance the burden of proof basically lies on the plaintiff who has to show that at the time when he filed the suit, there was a subsisting contract and that at the time of execution of contract vendor.Had a legal and transferable right in the property. Likewise in all civil suits L including a suit for specific performance if a respondent does not produce evidence, this fact in itself shall not entitle a plaintiff for grant of decree. In a civil suit if the other party does not produce any evidence, the claim of a party adducing evidence should not be accepted. The quality or the strength or weakness of evidence so produced must be looked into by the Court.
Reference can be made to a judgment of L this Court reported as Ali. Akbar v. Muhammad Hayat Khan PLD 1978 SC (AJ&K) 109 which it was held as under:-- "4. We have heard the learned counsel for the appellant and considered his arguments. His main contention is that since no witness had been produced by Muhammad Hayat Khan respondent in the trial Court, the first and the second appellate. Courts fell in error in rejecting the evidence of the appellant. We find this argument devoid of force as it rests on an erroneous assumption that in a civil suit if the other party does not produce any evidence, the claim of the party adducing evidence should be accepted, irrespective of the Quality or the strength or weakness of the evidence so produced. It is a question of elementary principle that no evidence, even if it is not rebutted can be accepted ipse dixit without its evaluation and if the Court finds that the one-sided evidence suffers from such grave defects as to render it unreliable, the Courts cannot blindly accept the version of such witness. In the present case, the trial Court has simply mentioned the names of the witnesses without going into their merit which is not a proper way of deciding civil suits. As, such, the decision of the trial Court cannot be given much weight as against the decision of the first and the second appellate Courts which have fully gone into the statements of the witnesses, weighed their strength and weakness and after critical analysis have come to the conclusion that because of the gross contradictions, the witnesses produced by the appellant cannot be relied upon. Moreso, when such oral evidence is pitted against a registered gift-deed by the donor in favour of his son-in-law in lieu of services rendered in the past and to be rendered in future. It may also be stated here that some of the very witnesses of the appellant had admitted that the donee had been rendering services to the donor in the past. In view of such an analytical appreciation of the evidence 'by the Courts below, we find no force in these arguments of the learned counsel for the appellant. Apart from this, we find that the question as to whether the gift- deed was in reality what it purported to be or a sale-deed in the garb of a gift-deed, is purely a question of fact as no point of interpretation of law is involved in this case. It has been our practice not to go into concurrent findings of fact unless some gross misreading of evidence or an appreciation of evidence leading to manifest injustice is shown. Such is not the case here and, therefore, finding no force in this appeal, we dismiss it. No order as to costs."
We may add that the legal position in respect of proof in a civil case is that in civil cases' only preponderance of probability is sufficient to record findings in favour of the parties as compared to the criminal cases where the evidence to be established beyond reasonable doubt is the first requirement of law. Quantum of proof in civil cases being not strict, cumulative effect of all material placed on record is to be seen when the party in whose favour such material creates preponderance. Of probability. In the present case the predecessor of respondents or for that matter the respondents did not refute the evidence of the appellant to the effect that the breach of contract was in fact committed by the predecessor-in-interest of the respondents. In fact what actually happened between the parties during the period starting from 8-11-1987 till filing of second suit cannot be ascertained and when the legal position is that in cases of specific performance it was for the plaintiffs, who have to prove that the agreement-to-sell or contract still subsists.
Therefore, we can hold safely that preponderance of probability tilts towards the defendant- appellant. It, therefore, follows that the High Court has not properly considered the evidence of the appellant. We observe that at the time of execution of contract the appellant being not owner of the suit property, had no valid right to transfer it and if he had any transferable right, it was not available to him at the time when the second suit was filed. The same is our finding in respect of other disputed facts.
18. The trial Court has dismissed the suit of the respondents for specific performance of contract but has granted decree to the extent of earnest money of Rs,1,75,000 along with the interest at the bank rate, whereas the High Court has decreed the suit of the respondent to the extent of specific performance of the alleged contract with relief for the appellant, herein, to get double of the amount which he had agreed to receive as consideration or price of the bungalow in dispute.
Under section 151, C.P.C., the Court is vested with the powers to pass any order. The power so conferred in civil Court under section 151, C.P.C.. Is known as the inherent power of the Court, which basically is meant to avoid multiplicity of proceedings, to shorten the litigation and to do complete justice between the parties and mould relief according to altered circumstances in the larger interest of justice. The power, however, remains subject to exercise of discretion to be exercised judicially in proper cases only. The specific performance of a contract being an equitable relief, cannot be granted as a matter of right and it can be granted only if "under all circumstances it is just and equitable to do so." To exercise the discretion under the referred principles and standards we see that the trial Court has rightly passed the finding in the suit for specific performance.
19. The determination whether consideration to be received by the appellant is grossly inadequate with reference to the circumstances existed at the date of execution of contract, by itself or coupled with the other circumstances, we see that the judgment and decree passed by the District Judge wherein he has granted a relief to the respondents in shape of a decree for payment of received earnest money with interest at the bank rates for the period it remained with the appellant, appears to be equitable and proper. The judgment of the High Court by ordering specific performance of the so-called contract is grossly inadequate and cannot stand.
' In view of what has been stated above, the appeal is accepted, the judgment and decree of the High Court dated 13-5-2008 are set aside and the judgment and decree passed by the District