Atir Mahmood, J.: Precise facts of the case are that the appellant filed a suit for specific performance of agreement to sell dated 30.07.2007 regarding suit house, fully described in the plaint, against the respondents-defendants. It was averred in the plaint that the plaintiff purchased the suit property from the defendants for Rs.31,00,000/- out of which Rs.100,000/- were paid through cross cheque dated 30.07.2007; that defendant No.1 on his as well as on behalf of other defendants executed the agreement to sell; that the target date for payment of the remaining amount was set as 15.03.2008 otherwise the earnest money was to be confiscated by the defendants; that the plaintiff is ready to pay the remaining amount but the defendants are not.
2. Defendant No.1 and defendants No.2 & 3 opposed the suit by filing written statements separately.
Out of divergent pleading of the parties, issues were settled. Afterwards, defendants No.2 & 3 filed application under Order VII Rule 11, CPC on 05.11.2009 for rejection of the plaint with the assertions that they neither executed any power of attorney in favour of defendant No.1 nor they were signatories of the alleged agreement to sell nor they were present in Pakistan at the relevant time.
After hearing arguments pro and contra, the said application was accepted by learned trial court vide order and decree dated 20.01.2010 while rejecting the plaint to the extent of defendants No.2 &
3. Then, on 05.05.2010, defendant No.1 also filed application under Order VII Rule 11, CPC for rejection of the plaint. The appellant contested the same but learned trial court after hearing both sides allowed application of defendant No.1 as well and rejected the plaint vide order and decree dated 21.09.2010. Hence this RFA has been preferred by the appellant-plaintiff.
3. Learned counsel for the appellant inter alia contends that the impugned orders and decrees are against law and fact; that the plaint could not be rejected as done by learned trial court rather the trial court was bound to look into contents of the plaint; that the court should have recorded evidence and then decide the suit rather than rejecting the plaint; that the plaint could also not be rejected in piecemeal. He prays for acceptance of this appeal and setting aside the impugned orders and decrees.
4. Respondents have already been proceeded against ex parte vide order dated 06.10.2015.
5. Arguments heard. Record perused.
6. Undeniably, the suit house is jointly owned by all the three defendants. Defendants No.2 & 3 were admittedly not present in Pakistan at the time when the alleged agreement to sell was written.
They did not sign the alleged agreement to sell. There is also no power of attorney or anything else available on record which could suggest that defendants No.2 & 3 had appointed defendant No.1 as their attorney or they had countenanced so in any manner. Even, it is version of the plaintiff that he went to defendants No.2 & 3 for payment of Rs.500,000/- but they refused which is sufficient to establish that they did not want to sell the suit house to the extent of their shares. In the circumstances, learned trial court has rightly held that there appears to be no cause of action accrued to the plaintiff against defendants No.2 & 3. Then, there remained the suit to the extent of defendant No.1 who also filed application under Order VII Rule 11, CPC. Learned trial court incorrectly and illegally held that after rejection of the plaint to the extent of defendants No.2 & 3, the suit of the plaintiff was hit by Section 17 of the Specific Relief Act, 1877 and that it was barred by law. Section 17 of the Act provides as under: "17. Bar in other cases of specific performance of part of contract: The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections."
The three last preceding paragraphs as mentioned in Section 17 ibid are Sections 14 to 16. I have carefully read the said provisions of law. These provisions deal with part performance of the agreement and there is nothing mentioned therein which could bar the court from issuing decree for part performance of agreement to sell. However, Section 15 provides as under: "15. Specific performance of part of contract where part unperformed is large: Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right of compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant."
In the above provision of law, there are two conditions for non-entitlement of decree:
(i) If a party fails to perform his whole part of agreement and the part which must be left unperformed forms a considerable partition of the whole, or
(ii) It does not admit of compensation in money.
Perusal of above makes it clear that the word 'party' mentioned in the above provision means the party approaches to the court for decree, i.e. The plaintiff but it does not mean the defendant in any manner. Meaning thereby, the plaintiff must fulfill his obligations first and then ask for compliance of the agreement by the other side and if the plaintiff fails to perform in full or the part left unperformed on his part is larger than he has performed or wants to perform then, he is not entitled to the decree. The other condition regarding acceptance of compensation is also for the plaintiff and not for the defendant as it is only the plaintiff which could be held entitled for decree in shape of performance of agreement or any compensation in lieu thereof. Mere denial by a defendant to an agreement allegedly executed by him does not, in our considered view, entitle him to file application under Order VII Rule 11, CPC. He can also not take plea that portion, which is left unperformed on part of the defendants and not on that of the plaintiff, is larger than the left one, therefore, the plaint be rejected under Section 17 of the Specific Relief Act.
7. The application under Order VII Rule 11, CPC pertains to suits and plaints. This provision of law can only be applied for rejection of the plaint if the plaint does not disclose any cause of action against the defendant(s). In the instant case, the pleadings contained in the plaint and the agreement to sell or other documents appended therewith though do not reflect any cause of action accrued to the plaintiff against defendants No.2 & 3 but these do against defendant No.1 who is allegedly signatory of the agreement to sell. The plaint could not be rejected on the basis of denial by defendant No.1 as the plaint as well as the written statement are mere pleadings and cannot be termed as proof of anything contained therein. The initial burden to prove the case is yet on the plaintiff for which he should have been given opportunity. In the circumstances, the learned trial court should have proceeded to record evidence of the parties to the extent of defendant No.1 and then decide the suit accordingly rather than rejecting the plaint. The order of learned trial court dated 21.09.2010 to the extent of defendant No.1 being against the law is not sustainable. Reliance is placed on the ratio decidendi laid down by the apex court in case reported as Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCM R 236).
8. For what has been discussed above, this RFA is partially allowed, impugned order and decree dated 21.09.2010 passed by learned trial court is set aside and the case is remanded to learned trial court with the direction to record evidence of the parties to the extent of share of defendant No.1 in the suit property and then decide the matter after affording opportunity of hearing to both sides, strictly in accordance with law. However, order and decree dated 20.01.2010 passed by learned trial court to the extent of defendants No.2 & 3 is upheld.