' LAL JAN KHATTAK, J.---This civil revision petition is directed against the judgment and decree dated 11-12-2010 of the learned Additional District Judge-VI, D.1.Khan whereby appeal of the petitioner, against the judgment and decree dated 2-6-2009 of the learned Civil Judge-VI, D.I.Khan has been dismissed.
2. Brief facts of the case are that the respondent-plaintiff filed a suit against the petitioner- defendant for recovery of Rs,1,92,560. According to averments of the plaint, vide agreement dated 4-3-1996, petitioner agreed to sell landed property measuring about 66 kanals and 12 marlas falling in the revenue estate 'Babar' Dera Ismail Khan @ Rs,6000 per kanal against a total sale consideration of Rs,3,99,600 (hereinafter to be referred as the suit land). It is averred in the plaint that an amount of Rs, 1,06,560 was paid in cash while a cheque of Rs,50,000 was given to the petitioner as earnest money. Through the agreement it was agreed between the parties that the remaining amount will be paid by the vendee to the vendor at the time of attestation of mutation or registration of the sale deed. A further condition was embodied in the agreement deed dated 4- 3-1996 that in case the balance amount is not paid by the vendee to the vendor till 19-6-1996, then the agreement to sell shall be deemed as cancelled and the earnest money already paid by the vendee shall be forfeited in favour of -the vendor. Likewise the parties also agreed that in case the vendor fails to transfer the ownership of the land through attestation of mutation or registration of the sale deed within the due date, i,e, 19-6-1996, then in that eventuality he will return double the amount he has received from the vendee.
3. The learned trial court summoned the petitioner-defendant who contested the suit by filing written statement. Out of divergent pleadings of the parties the learned trial court framed necessary issues on which the parties led their respective evidence whereafer suit of the plaintiff was decreed vide judgment dated 2-6-2009. The decree was impugned in appeal by the petitioner but the learned appellate court concurred with the findings of the learned trial court and dismissed the appeal vide judgment and decree dated 11-12-2010. The petitioner has now impugned both the judgments and decrees through the instant revision petition.
4. Learned counsel for the petitioner contended that both the courts below have fallen in error by decreeing the suit for which the respondent was not entitled to as she herself violated the terms and conditions of the agreement. Elaborating his this argument, the learned counsel contended that it was agreed upon between the parties that the remaining sale consideration of the suit land will be paid by the respondent till 19-6-1996 but when the vendee failed to pay the vendor the remaining sale consideration within the due date then as per penal clause of the agreement dated 4-3-1996, the agreement stood cancelled and the paid amount was forfeited in favour of the vendor-petitioner. The learned counsel then argued that the impugned judgments and decrees of the two courts below are the result of non-reading and misreading of the case evidence which are liable to be reversed and consequently suit of the respondent be dismissed.
5. As against the above, learned counsel for the respondent while defending the judgments and decrees of the two courts below contended that the petitioner has not acted according to the terms and conditions of agreement dated 4-3-1996 and as a result the respondent was constrained to sue her in the court of law for the enforcement of her right. He argued that the concurrent findings of the two courts below do not suffer from any illegality or jurisdictional defect hence the same may be upheld.
6. I have heard learned counsel for the parties and gone through the record of the case.
7. In this case undoubtedly the agreement dated 4-3-1996 Ex.PW.7/2 has been admitted by both the parties. Part payment made by the vendee to the vendor too has been admitted. However it appears from the record that the subsequent events frustrated the agreement and made it impossible to take it to its logical end. Record reveals that the vendee after execution of the agreement and making payment of the earnest money came to know that the total suit land measuring 66 kanals and 12 marlas is not available on the spot for its delivery to her as the area was either reduced by diluvian or having been occupied or encroached upon by other persons. In the above situation the respondent-plaintiff sent a notice to the petitioner which is Ex.PW.7/3, demanding her to make up the deficiency of 20 kanals and 12 marlas in order to make the agreement deed practicable. Record further shows that the issue of deficiency in the suit land was also realized by the petitioner when she on 17-6-1996 moved an application to the Collector for demarcation and defining limits of the suit land. On this application the revenue officials went to the spot and demarcated the suit land and found encroachment therein by some other persons.
The demarcation report is Exh. PW .4/1.
8. No doubt literally it was agreed upon between the parties that time would be essence of the agreement and the attestation of mutation or registration of sale deed before the sub-registrar by the vendor in favour of the vendee was subject to payment of remaining sale consideration but the subsequent event i,e, non-availability of the entire suit land with the vendor for its delivery to the vendee cannot be overlooked and the petitioner vendor cannot be allowed to take shelter under the hollow condition set out in the agreement that since the vendee has not paid her the entire sale consideration within due date, therefore, by applying the penal clause of the agreement she is justified in cancelling the agreement and forfeiting the already paid amount in her favour.
9. One of the para-mount elements in the law of contract is that there must be fairness on the part of the vendor. It postulates that the bargain must be fair and the subject matter of contract must be immune from all sorts of defects in it so that the ensuing legal and legitimate rights of enjoyment of the vendee in the subject matter of sale be protected and he may not be put to any undue harassm ent or financial loss. If in an agreement or contract there is any unfairness on the part of the vendor in that eventuality the courts are empowered to come to the rescue of the vendee.
10. Albeit a bare perusal of the agreement Ex.PW.7/2 reveals that in case the remaining sale consideration is not paid by the vendee to the vendor within the specified time then the agreement shall be deemed to have been cancelled and the earnest money earlier paid shall be forfeited in favour of the vendor. But an agreement should not be read for an academic purpose like a paper rather its main purpose be kept in mind while interpreting it. The petitioner agreed to sell 66 kanals and 14 marlas of land to the respondent @, Rs,6,000 per kanal. Part payment was made and received by her and the respondent was also put in possession of some of the suit land but thereafter the respondent came to know that the total agreed land is not available with the petitioner for its delivery to her on which she approached her and consequently the petitioner moved an application to the concerned revenue officer for demarcation of her land which proceedings were conducted by the revenue hierarchy and it came to surface that some persons have encroached upon the suit land, inter alia, some diluvian thereof. This disclosure and subsequent inability of the petitioner to give vacant and peaceful possession of the entire suit land to the respondent was a factor and sufficient ground for the respondent to withhold the payment of the remaining sale consideration.
11. Contention of the learned counsel for the petitioner/vendor, that as per agreement deed possession of the entire suit land was given to the respondent/vendee and as such she was under obligation to pay the remaining sale consideration to the petitioner within the stipulated period in order to get attestation of mutation in her favour, is not tenable on the ground that though through the deed of agreement possession of full land is shown to has been given to the respondent but in fact this phraseology used in the deed has not been actualized and materialized in letter and spirit as the petitioner herself moved application to the revenue officials for getting demarcation and defining boundaries of her land so that the respondent be given full possession of the suit land.
Had full possession been given to the vendee by the vendor then what for the application for demarcation was moved by her to the collector concerned.
12. In view of the above it is held that the petitioner has not performed her part of the agreement.
The entire suit land was not in her possession for its delivery to the respondent-vendee at the time of agreement, therefore, she is liable to return the received amount to the respondent as per agreement.
13. Now I revert to another crucial question of the case that what amount has been paid by the respondent to the petitioner and how much she will return to the respondent. Record reveals that an amount of Rs,50,000 was paid by the respondent-vendee to the petitioner-vendor through cheque which fact has been admitted by the petitioner and as such there is no need to further dilate upon it but so far as the payment of cash amount of Rs,1,06,560 is concerned, on the record there is no reliable evidence that this amount was actually paid by the respondent to the petitioner. This alleged payment has not only been denied by the petitioner but the respondent too has not convincingly proved passing of this amount to her. Neither the respondent has produced any receipt qua payment of the aforesaid amount nor there is any convincing evidence which can be relied upon by this court to the above effect. Question arises that when on the one hand the respondent is paying Rs,50,000 an amount in round figure through a cheque while on the other hand she claims to have paid Rs,1,06,560 in cash. This does not appeal to mind as neither any person nor any plausible explanation has been furnished by the respondent that why she made two payments at the same time in two different modes and particularly when the alleged cash Minamoto is not in round figure. From the above discussion it is held that only Rs,50,000 have been paid to the petitioner by the respondent and she has not proved her case to the extent of payment of Rs,1,06,560 i,e, the cash amount to the petitioner.
14. Conclusion of the above is that the petitioner has not performed her part of the agreement to attest the mutation of the suit land in favour of the respondent and the fault lies on her. She has also not delivered the total suit land to the respondent and the one delivered has been taken back from her. Therefore, the petitioner is liable to pay the respondent the amount she has received from her i,e, the vendee.
15. As the amount of Rs, 50,000 was received by the petitioner way back on 4-3-1996, it would be just and proper to order for return of Rs,50,000 to the respondent with profit at the bank rate from the date of receipt of the aforesaid amount till its payment. So far as claim of, the respondent for the recovery of cash amount of Rs,1,06,560 is concerned the same is not proved and to this extent suit of the respondent is dismissed. With the above modification the instant revision petition is dismissed.