' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioner has challenged the judgment and decree dated 7-12-2004 passed by learned Additional District Judge whereby appeal filed by the respondent-plaintiff was accepted and judgment and decree dated 27-6-2003 passed by learned Civil Judge 1st Class, Bhakkar dismissing the suit for specific performance, was set aside.
2. Brief facts of the case are that on 27-11-1998 plaintiff-respondent filed a suit for specific performance on the basis of an agreement to sell dated 20-2-1988. Written statement was filed.
Agreement was denied. Learned trial court framed the issues on 9-7-1999, which are as follows:--
(1) Whether the plaintiff has no cause of action to file this suit? OPD
(2) Whether the suit is ambiguous? OPD
(3) Whether the suit is time barred? OPD
(4) Whether the plaintiff is estopped due to contradiction in his act and conduct? OPD
(5) Whether the suit is not properly valued for the purposes of court fee? OPPs
(6) Whether the plaintiff is entitled to the decree as prayed for? OPP
(7) Relief.
3. Parties were directed to produce their evidence. Both the parties produced their oral as well as documentary evidence. Learned trial court also sent the Local Commission for determination of the price of the suit plot, who vide his report dated 23-9-1999 determined that the price of the suit plot is Rs,4,80,000. Vide judgment and decree dated 27-6-2003 learned trial court dismissed the suit.
Appeal was preferred. Learned first appellate court vide judgment and decree dated 7-12-2004 accepted the appeal and decreed the suit.
4. Learned counsel for the petitioner argues that the agreement has been denied by the petitioner- defendant; that plaintiff-respondent failed to prove the execution of the agreement and payment of the money under the agreement; that the agreement is defective one as it does not bear the signatures of the plaintiff-respondent. While relying upon "Mst. Nazeer Begum v. Syed Abid Hussain Shah and others" (PLD 2005 Lahore 419), "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others"
(2010 SCMR 334) and "Mst. Barkat Bibi and others v. Muhammad Rafique and others" (1990 SCMR 28), "Mst. Latifan Begum and another v. Nisar Ahmad" (2001 YLR 701) as well as a judgment passed by this Court in R.S.A.No,128 of 2005 (Talib Hussain v. Muhammad Nawaz and others ) dated 6-6- 2013 argues that if any agreement is not signed by both the parties, the contract could not come into existence as for acceptance of the offer/proposal signatures of both the parties are necessary when terms of the agreement are to be accepted and acted upon by the parties.
5. Respondent was represented through Ch. Nisar Ahmed Dhiloon, Advocate whose name is notified in the cause list but no one is present on behalf of the respondent, therefore, he is proceeded against ex parte.
6. I have heard ex parte arguments of learned counsel for the petitioner, gone through the record as well as evidence recorded by both the courts below and the case-law referred by learned counsel for the petitioner.
7. I have noticed that alleged agreement to sell (Exh.P.1) does not contain the date of performance.
No separate receipt of payment of money under the agreement has been produced. The alleged agreement is dated 20-2-1988 and the suit has been filed on 27-11-1998. Agreement is allegedly signed by the petitioner-defendant and there are no signatures of the plaintiff-respondent. The signatures of son of the plaintiff are available but there is no mention that he is Attorney or he has any power on behalf of his father to enter into an agreement to sell with the respondent-petitioner.
When without any reason the date of performance is not mentioned in the agreement, it makes it doubtful. I have noticed that the Local Commission has assessed the value of the suit property as Rs,4,80,000 whereas under the agreement the value of the property has been mentioned as Rs,22,000 and it is the case of the plaintiff-respondent that Rs,21,000 have been paid as earnest money and only Rs,1000 is outstanding till the time of execution of sale instrument. There is no specific mention that why this case has been filed after about 10 years of the alleged agreement to sell and even in the agreement there is no mention that why the sale instrument has been deferred when almost 95.45% of the consideration amount has been paid, what was the reason for non- payment of the meager amount of Rs,1000 and entering into the agreement, no disability has been mentioned in the agreement nor pleaded in the suit, why the sale instrument was not executed. All these things make the agreement doubtful when it is denied by the other side. Furthermore, when the alleged agreement to sell is signed by one party, under section 2(e)(h) of the Contract Act, 1872 it cannot be termed as an agreement. Contract would come into existence upon acceptance of the offer/proposal and to have an agreement it was very essential that there should be consideration for the promise. In this case the ingredients of constituting a valid agreement are missing, therefore, Ex.P.1 cannot be termed as an agreement.
8. In my view the test to judge an enforceable agreement, where both the parties to the agreement agree for fulfilling the condition to agreement in the future or performance of their part in the future, both the parties to the alleged agreement be able to file suit for specific performance of the agreement, when one of the parties had not signed, the other party cannot file a suit for specific performance of the said agreement against the party who has not signed the agreement. In this iew of the matter the alleged agreement to sell on the basis of which suit has been filed is not signed by the plaintiff-respondent himself, therefore, the alleged agreement is not an agreement in the eye of law. While relying upon the case-law referred by the learned counsel for the petitioner I am clear in my mind that the findings recorded by the learned first appellate court while decreeing the suit are against the law as well as evidence available on the file. In this view of the matter, this Civil Revision is accepted with costs throughout and findings recorded by the learned first appellate court are set aside.